The government and laws of New Hampshire before the establishment of the province. 1623-1679

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CM^^

THE

GOVERN

AND

LAVVS«'^<^

refr

OF

NEAA^ HAMPSHIRE

BEFORE THE ESTABLISHMENT OF THE PROYINCE.

A MONOGRAPH CONSTITUTING THE INTRODUCTION TO THE
FIRST VOLUME OF THE PROVINCE LAWS

BY ALBERT STILLMAN BATCHELLOR,

EDITOR OF STATE PAPERS.

MANOHESTEB. N. H.

The John B. Clarke Company.

1904.

tc 6 tK*'^' lio

"L w

COLLE6E

INTRODUCTORY NOTES.

The Statute Law as Developed at the Time of the

Colonization of New England.

The statutory law of England in its later structure
commences with the Magna Charta, which King John
conceded under compulsion at Runnymead in 1215, which
Henry the Third confirmed in 1225, and which Edward the
First sealed with the Great Seal of England at Ghent on the
5th of November, 1297. The authorities generally agree
at this point. The principles embodied in the first Magna
Charta were contested during a long period subsequent to
the date of King John's concession. The confirmations
which are named as those of Henrv the Third and Edward
the First wei'e not the only ones that were required and ob-
tained before the Great Charter was universally recognized
in the form and terms in which it became permanent. As a
parliamentary act Magna Charta takes date as of 25 Edward
the First, A. D. 1297.^ The text of the Magna Charta of
John, 1215, is represented in facsimile in the Statutes of the
Realm, as also are other and later drafts of the instrument.^*
These charters take their place within what is called the
"time of legal memory." That term is employed as descrip-
tive of the period in and since the reign of Richard the First,
1189-1199. There is very little extant in authentic form that
is assignable to the first part of this so-called "time of legal
memory,'' except the charter of John and the other great
charters, with possibly a few isolated statutes. As to these
it may be said on the authority of Sir Matthew Hale^ that
there was great confusion until in Magna Charta of Henry the
Third, 1225, they obtained a full settlement, and the sub-
stance of them was solemnly enacted by parliament. Impor-
tant changes transpired from time to time in the text of the
Great Charter. Repeatedly the confirmations were compul-
sory.^ That there had been more than thirty of these con-
firmations of Magna Charta before the time of Henry the

^statutes of the Realm, ed. 1810, vol. 1, p. 114.

'Statutes of the Realm, ed. of 1810, pp. 6, 22, et seq.

■Sir Matthew Hale, History of the Common Law, ed. 1794, p. 5, quoted in
Finlason's Reeve, vol. 1, p. 1, note B.

*Pollock and Maitland, vol. 1, p. 157.

4 NEW HAMPSmRB PROVINCE LAWS. •

Fifth, 1413, is an indication of the practical insecurity of
the rights conceded by the terms of the instrument.^ The
charter takes its place as the first chapter of the enacted
law.2 "The first set of laws," remark the authors of the History
of English Law before the Time of Edward the First, "which
in later days usually bears the name of ^statute,' is the Pro-
visions of Merton issued by the king, with the consent of the
prelates and nobles, in 1236." From the reign of Henry the
Third, 1216-1272, no statute roll nor any rolls of parliament
are preserved, and it is not supposed that any such records
were kept. The earliest statute roll now extant began with
the Statute of Gloucester in 1278. The first Parliament
Roll comes from 1290.^ From the time of the confirmation
of Magna Charta, 9 Henry the Third, 1225, to the time of Ed-
ward the Third, 1327, a considerable number of acts of par-
liament are preserved, but it is from the latter reign that the
statutes exist in a regular series to the present.^

The system of statutory law which had been embodied in
acts of parliament actually enrolled and accessible at the
time of the first planting of English colonies in New England
was not of remarkable antiquity. From 460 B. C, the date
to which the enactment of the Twelve Tables is assigned,
nearly a thousand years had elapsed before Justinian, in 534
A. D., had consolidated the body of the Roman law into the
Institutes, Pandects, and Code. From the beginning of the
permanent occupation of Britain by the Romans to the
Magna Charta of Henry the Third was a period of almost
twelve hundred years. The Roman law was administered
to a certain extent in England from about A. D. 50 to about
A. D. 450.^ Through the operation, centuries later, of en-
tirely different influences, the Roman law, as it survived
in the forms and principles of the civil and canon law subse-
quent to the Norman conquest, was brought into contact
with the government and affairs of the people of England.
It is not now open to question that the influence of Roman
laws was productive of important results upon legal usages,
procedure, and case law. In the then existing environment
it would be inevitable that the learning of those who were
masters of the Roman law would be manifest in the lex
smipta, as the statutes took form in the early stages of their
development into a permanent system.® The Saxon suprem-

^Huine, History of England, vol. 2, 268; Bouvier, Law Dictionary, 14tli ed.,
Tol. 2, p. 87.

"Pollock and Maitland, vol. 1, p. 157; 9 Hen. 3, c. 29, in Ruffhead.

»/d., vol. 1, pp. 158, 159.

*Finlason's Reeve, ed. 1869, vol. 1, p. 1.

•Finlason*s Reeve, vol. 1, pp. xxxix, 3, Note B; Amos, Science of Law, p.
380; lladley. Introduction to Roman Law, 18.

•Pollock and Maitland, History of English Law before the Time of
Edward I, vol. 1, chap. 4; Finlason, Introduction to Reeve's History of Eng-
lish Law, ed. 1809, vol. 1, p. Ixxxix; Amos, Science of Law, pp. 9, 10.

SOURCES AND ANTEGBDENT8. 5

acy was the occasion for the institution of other laws
and the evolution of other customs, which in their order en-
tered into the foundation upon which, in a later period, a
permanent system was. established.^ The Norman conquest
also introduced other controlling factors distinct from both
the Roman and Saxon law, related to the establishment and
development of legal institutions and of positive law. All
these laws, whether institutions, codes, charters, royal edicts,
or customs, which are assignable to any time prior to the
reign of Richard the First, and whether of aboriginal Britton-
ish, Roman, Saxon, Danish, or Norman origin, are, however,
according to Sir Matthew Hale, accounted lex nmi scripta. It
may be noted that the parliament assembled by Leicester in
1265 was the one to which both the knights of the shire and
the representatives of the boroughs were summoned. This is
regarded as the first meeting of the Houses of Commons.^
While it is conceded that the beginning of a continuous series
of recorded (manuscript) parliamentary laws is assignable to
the reign of Edward the Third, 1327-1377, it was not until
near the close of the reign of Edward the Fourth, 1483, that
the invention of printing, in connection with practical busi-
ness uses, was introduced into England. The permanent and
successful establishment of mills in England for the manu-
facture of paper is of about the same date as the introduction
of printing as a trade, that is, in the latter part of the fif-
teenth century, although it had previously been prosecuted on
the continent during an indefinite period. The first book
<!ertainly known to have been printed in England bears the
date 1477. Among the considerable number produced in the
next fifteen years was a volume containing the laws of Rich-
ard the Third, 1483-1485,^ printed in French, besides several
other volumes of statutes or compilations both of earlier and
later date than those of Richard the Third.* The publication
of the laws of England in printed books, therefore, was ante-
rior to the planting of the English colonies of New England
by less than one hundred and fifty years. Even after 1327,
the date which is regarded as marking the beginning of a
regular series of English parliamentary statutes, there was
much which stood in the way of a general diffusion of knowl-
edge as to the provisions of that body of law. The acts were
engrossed in Latin or French until the time of Henry the

^Thorpe's Ancient Laws and Institutions of England from ^thelberht to
Cnut with English Translations, etc., 2 vols., Public Records Commission,
1840.

*Stubbs, Constitutional History of England, vol. 2, 4th ed., sec. 177, p. 96;
Hume's History of England, vol. 2, p. 53.

•Eneyc. Brit., vol. 8, p. 413; De Vinne, Invention of Printing, 508.

*Statutes of the Realm, ed. of 1810, Catalogue of Printed Collectipns, etc.,
constituting Appendix A to the Introduction to that work. The same cata-
logue is reproduced in this volume, post, pp. 726 et seq., and is designated as
Appendix A, II.

6 NSW HAMPSHIRE PIIOVINCB LAWS.

Seventh, 1485. Pollock and Maitland give a succinct ac-
count of the conflict which continued in England for centu-
ries between the Latin, French, and English languages, re-
sulting in the transition from French to English statutes that
occurred suddenly at the accession of Richard the Third, and
which seems to be contemporaneous with a change in the
method of enrollment. To the very last, 1503, in the time
of Henry the Seventh, the formal parts of the Roll are writ-
ten either in French or in Latin.^

The first compilation of the charters and statutes which
appeared in print in an adequate English version was that of
1579,2 which is known as RastalPs Collection. It is the first
one which contains the statutes previous to Henry the
Seventh, 1485, translated into English. The production of
this work and its successive revisions down to 1621 may well
be regarded as marking an epoch in the history of the leaf
scripta. The statutes in this publication are arranged under
apt titles, and the new statutes from time to time were added.
"The translation contained in this collection api>ears to have
been executed with superior care and industry."^ It will be
observed that only forty-two years intervened between the
first and last editions of the English version of RastalPs
work. In the very last part of that period the planting of
Plymouth colony was effected.*

"By far the greatest portions of the written or statute laws
of England," says Sir James Palgrave, "consist of the declar-
ation, the reassertion, repetition, or the re-enactment of some
older law or laws, either customary or written, with additions
or modifications. The new building has been raised upon
the old ground-work : the institutions of one age have always
been modeled and formed from those of the preceding, and
their lineal descent has never been interrupted or disturbed."*^

^Pollock and Maitland, vol. 1, pp. 58-65.

*An edition of the charters and several of the statutes bearing date pre-
vious to Edward the Third, was published in book form in an English trans-
lation from the Latin in 1534. In this edition .the laws were not arranged
chrcrolcgically nor by title.

"Statutes of thei Realm, vol. 1, p. xxii. See also reprints in this volume,
post, constituting Appendix A, I, and Appendix A, II.

*The present generation is now separated from the period in which the
Pilgrim Fathers were living by about two hundred years, and from their
immigration by about two hundred and eighty years. Mary Allerton, the last
survivor of the Mayflower immigrants, daughter of Isaac Allerton, and wife
of Elder Thomas Cushman, died in 1699. Appleton's Encyc. of Biog., vol.
2, p. 43. Hon. Alfred Russell, in an essay in the Michigan Presbyterian for
April 16, 1903, remarks that his eminent friend, Sidney Bartlett, of the Bos-
ton bar, recently deceased at a great age, in his youth, at his birthplace, Ply-
mouth, Mass., conversed with those who in their youth had conversed with
those who were Pilgrims on the Mayflower. Mr. Bartlett was born Febru-
ary 13, 1799, and died March 6, 1889.

"Sir James Palgrave, English Commonwealth, 1, 6.

80URGBS AND ANTECBDBNT8. 7

Colonial Beginnings in New England.

The situation of the New England colonies was, at the out-
set, in many respects anomalous. This was peculiarly the
case regarding the laws by which they would be governed in
the new country in which they had become established. As
indicated in the historical outline already presented, the laws
of England had assumed a status in which they could be
obtained in books, and the text understood by the average
man of affairs in the earliest colonial period. There were,
however, important and, in some directions, impassible limi-
tations on the applicability of the laws of England to the new
conditions existing and constantly arising in New England.
The reason underlying much of the statute law of the mother
country did not exist in the American colonies. Ratio legis
cessaty cessat lex. The ideas of the colonists with reference to
the functions of the state and the rights of the individual were
radically different from those entertained in the home gov-
ernment and reflected in the statute law of the realm as it
stood in 1620. The wide divergence between the views of
the New England immigrants and the representatives both of
church and state, who were in control of affairs in England
with reference to ecclesiastical concerns and the relations of
church and state, were fundamental and irreconcilable. Ne-
cessarily, also, the principles and methods of ownership, occu-
pancy, and control of lands, forests, and waters in the new
country, which ancient systems and modem statutes had
established in the mother country, were, in important features,
inapplicable in the new country; and radical changes in sys-
tems of law relating to inheritances, ownership, occupation,
and transfer of rights in real estate were inevitable.^

^Mr. G. T. Bispham, in an article entitled "Law in America, 1776-1876,"
North American Review, vol. 122, 1876, p. 156, says:

"On the other hand, a still more striking and interesting topic is the con-
sideration of the departures of American law from English principles; and
the cases here presented would be those in which, from circumstances which
it ought to be the task of the student to discover and explain, American
jurisprudence has found the rules of English law unsuited to the conditions
of American life, has therefore repudiated or modified them, and has estab-
lished a set of legal rules which may be termed essentially and properly
American. This latter view of the general subject is one which would, with
the greatest propriety, be considered the most interesting and instructive at
this period of the national existence, when we are occupied in looking for,
pointing out, and discussing those features in the different relations of life
which are often grouped together under the somewhat vague term of Amer-
ican institutions. Both methods, however, of dealing with the general sub-
ject will have to be, to a certain extent, adopted; and in endeavoring to JB.nd
out what are the peculiarities of American law which have grown up or
sprung up since our separation from the mother country, and which tend to
give our jurisprudence a national individuality, we shall be compelled to
touch upon some points in which the American has advanced beyond, or
fallen behind, English law in paths which are common to both.

"It is a trite remark, and one which has been made at many different times
and with varying phraseology, that all law is the adaptation of principles
of action to the physical and political conditions of a country, and to its

S NBW HAMPSHIBB PBOVINCB LAWS.

The C5ouncil for New England (Plymouth Company), as con-
stituted in 1620, was made independent of the London Com-
pany, with which it had formerly been in co-operation. This
Council for New England was empowered by its charter to
legislate for the new colonies to be established under its
auspices in America. It could exercise martial law and
maintain a monopoly of trade within the limits of its patent.
The Mayflower company, which effected its New England set-
tlement in 1620, declared a purpose and asserted the right in
the now famous compact of November 11, 1620, to "enact,
constitute, and frame such just and equal laws, ordinances,
acts, constitutions, and officers, from time to time, as shall
be thought most meet and convenient for the general good of
the colony; unto which we promise all due submission and

moral, social, and intellectual growth. All national institutions must bear
the impress of the outward features of nature by which the inhabitants are
surrounded, and their modes of life, to a gfreat extent, determined, and must
also reflect the inward life of a nation and the external associations and in-
ternal consciousness by which that inward life has been moulded.

"If we were to imagine a man placed, in a savage state, in a new country,
and were at liberty to suppose that his individual existence could be suffi-
ciently prolonged to enable him to reach, in his own person, a condition of
civilization and enlightenment, it would seem to be plain that the causes
which control this development and determine its character must be sought
for, in the first place, in the external physical phenomena by which he was
surrounded."

See also Doe, C. J., in Thompson v, Androscoggin Co., 54 N. H., 548; Concord
Mfg. Co. V. Robertson et ah, 66 N. H. Eeports, pp. 1-30.

The Sources of New Hampshire Law by William Smith, 1, Proceedings of
the New Hampshire Bar Association, p. 682.

Judge Parker (Lecture at Lowell Institute, 1869, cited below) also eomments
on the latitude for legislation which the local conditions in the new country
necessarily afforded, and the not altogether obsolete question as to whether
the laws of the mother country accompanied the exercise of her sovereignty
in her American possessions in the early colonial period without special par-
liamentary legislation to that end. He says:

"But there was a restriction upon their legislation, religious as well as civil.
They were to make no laws contrary to the laws of the realm; and the ques-
tion arises. What was the character and what the extent of this restraint?

"We may safely conclude that the meaning of the provision is not that they
are to make no laws different from the common law of England, for much
of that law was entirely inapplicable to their condition, so that they were
under the necessity of making different laws. Laws different from or con-
trary to the laws of feudal tenure could not come within the prohibition. The
same may be said of laws relating to the peerage, and divers other matters
of more common concern.

"So we may be assured that it was not a prohibition to make laws different
from the statutes of England, for it was known that it was to escape from
some of those laws that they emigrated. If they could make no law which
provided for a different form of worship than that which was established in
England, — if they must establish that with all its concomitants, they would
hardly have crossed the Atlantic for the privilege of voluntarily subjugating
themselves by their own acts, to the pains and penalties, and violation of
conscience, to which the acts of others would have subjected them if they
had remained. Moreover, they had no bishops, — could not consecrate any, —
and no one proposed to do that for them when the charter was granted.
Laud would doubtless have been pleased to do them that favor three or four
years afterwards; but their right of legislation, or the restraints upon it, or
the removal of restraints, did not depend upon that.

SOURCES AND ANTECEDENTS. ^

■ *

obedience." The territorial patent from the C5ouneil for New
England to Plymouth Colony in America was issued in 1621.^
The colony charter was not obtained until January, 1630.
This later grant was from the Council for New England. It
purported to invest the Colony of Plymouth in New England
with the law-making power. On this point the following
terms are employed :

"Alsoe it shall be lawfull and free for the said William
Bradford his associats his heires and assignes att all tymes
hereafter to incorporate by some usuall or fitt name and title,
him or themselves or the people there inhabitinge under
him or them with liberty to them and their successors from
tyme to tyme to frame, and make orders ordinances and con-
stituc'ons as well for the better govemmente of their affairs
here and the receavinge or admittange any to his or their
society, as alsoe for the better governm't of his or their peo-
ple and affaires in New Englande or of his and their people att
sea in goeing thither, or returninge from thence, and the same
to putt in execuc'on or cause to be putt in execuc'on by such
officers and ministers as he and they shall authorise and de-
pute: Provided that the said lawes and orders be not repug-
nante to the lawes of Englande, or the frame of govemmente

by the said presidente and councell hereafter to be estab-
lished.''2

"The true construction of the clause is that they shall make no laws con-
trary to, — antagonistic to, — in contravention of, the laws of the realm which
extended or should extend over them, as inhabitants of the colony, and
which were to be their paramount law.

"We are thus brought to the question whether any and what laws of the
realm were in force in the colony at the time of the charter and emigration.
Happily we can settle this question by authority. It is agreed that the law of
the conqueror does not extend over the conquered country until the conqueror
pleases to put it in force there. And although we now hold that the title
of the crown to the greater portion of this country was by right of discovery,
it was held by the courts of England, long subsequent to the reign of Charles
I, to be a title by conquest. Chief Justice Holt, in the Court of King's Bench,
in the 4th of Anne, said; *The laws of England do not extend to Virginia,
being a conquered country, their law is what the King pleases.'* And Black-
stone, lecturing as late as 1756, says, *Our American plantations are princi-
pally of this latter sort [conquered or ceded countries], being obtained in
the last century, either by right of conquest, and driving out the natives
(with what natural justice I shall not at present inquire), or by treaties.
And, therefore, the common law of England, as such, has no allowance or
authority there.' He adds that they are *not bound by any acts of Parlia-
ment, unless particularly named.' "f Lowell Inst. Lecture, pamphlet ed.,
p. 31.

•Salkeld's Reports, vol. i, [ii] p. 666.
tBlackstone'8 Ck)m., vol. 1, p. 106.

^Bradford, Bradford History, p. 167.

'Plymouth Colony Laws, ed. 1836, pp. 24, 25. The grant of a law-making
power which appears in the charter of 1630 was foreshadowed in the patent
of 1621 to Peirce and others. Baylies, Memoir of Plymouth Colony, vol. 1,
part 1, pp. 185 ct seq., edition of 1866, edited by Samuel G. Drake. This his-
tory was first published in 1830, before the recovery of the Bradford manu-
script, but is an excellent authority; full text of the patent of 1621, with

10 NBW HAMPSHIRE PROVINGB LAWS.

Without pausing here to consider the mooted question
whether the Council for New England was vested with au-
thority by its own charter to endow one of its colonial
creations with the law-making power,^ it is sufficient to re-
mark that the charter of Plymouth CJolony of 1629-30 did con-
tain an apparent delegation of such powers. The practical
construction of the grant, by the colonists, was in favor of the
validity of this particular concession.^ Perhaps it cannot be
said, however, that these colonists did not exercise the law-
making power, in the ordinary sense of the term, prior to the
charter of 1629 [O. S.]. Mr. Brigham remarks^ in his preface
to the Plymouth Colony Laws, first published by the common-
wealth under his supervision in 1836, that "The first revision
of the laws was in 1636, and this may be regarded the first im-
portant era in their history, or perhaps, with more propriety,
the origin of the legislation of the colony. Previous to this
period there had been but few laws made and still fewer com-
mitted to record."

The code of 1636 was the work of the court, aided by eight
deputies chosen for this special purpose. But later, in 1636,
the functions of the general court were divided. For legisla-
tion the whole body of freemen were to attend, but proxies
were allowed for the election of governor and assistants. In
1638 the representative system was fully introduced,
although the general court formally reserved the right of re-
vising or repealing the acts of the deputies.^ Previous to
this, 1635, the Council for New England had been dissolved.
The members of the company had proved themselves totally
unable to appreciate the extent of the enterprise in which they
were engaged, and, furthermore, the surrender of a charter
that was proving such a source of strength to the Puritans
was undoubtedly most acceptable to Charles the First.

introduction by Charles Deane, Mass. Hist. Soc. CoU., 4th Series, vol. 2, pp.
156-163.

The text of the patent of 1621, so far as it relates to the law-making
power, is as follows:

"And shall also at any tyme within the said term of Seaven Yeers upon
request unto the said President and Counsell made, graunt unto them the said
John Peirce . . . Letters & Graunt of Incorporac'on by some usuall & fitt
name & tytle with Liberty to them and their successors from tyme to make
orders Lawes Ordynaunce & Constituc'ons for the rule governement ordering
& dyrecting of all ^sons to be transported & settled upon the land . . . And
in the meane tyme untill such graunt made, Yt shall be lawfull for the said
John Peirce ... by the consent of the greater ^t of them To establish such
Lawes & ordynaunce as are for their better governm't and the same by such
Officer or Officers as they shall by most voyces elect <fe choose to put in execu-
c'on. Mass. His. Soc. Col., Fourth Series, vol. 2, p. 161.

^Quint^ Historical Memoranda of Ancient Dover, p. 423.

*Mr. Brigham's Text, Plymouth Colony Laws.

'Doyle, English Colonies in America, vol. 2, pp. 71, 72.

80URCRS AND ANTSCBDENTS. 11

On the 19th of March, 1627-8, a grant of land was obtained
from the Council for New England by John Endicott and
five other gentlemen, extending from three miles south of the
river Charles to three miles north of the Merrimack, and west-
ward to the Pacific ocean.

Mr. Doyle, the author of "English Colonies in America,"
vol. 2, pp. 88, 90, commenting on the events transpiring at this
time, says:

"Of the six grantees, two only, Humphrey and Endicott, play
any part in later New England history. The former had
already been treasurer of the fishing company at Cape Ann,
and he subsequently held office under the Massachusetts com-
pany both in England and in the colony itself.^ John Endi-
cott at once took a prominent place in the new undertaking,
and to the end of his life he stood in the foremost ranks of
New England statesmen, figuring in every stage as the em-
bodiment of all that was narrowest and sternest in Puri-
tanism.

"For the present this grant did no more than establish a
private partnership. The partners might entertain and ac-
knowledge among themselves political designs, but in the
eyes of the world there was nothing to distinguish their
scheme from those of Gorges or Mason.

"Meanwhile the partners in England were taking steps to
strengthen their legal position. The six original patentees
admitted more persons into their partnership. This change
was accompanied by one still more serious. The promoters of
the colony were no longer content to be a mere private com-
pany for trade. The authority of the crown was to be called
in to make good any flaw which might exist in their territorial
title. In March, 1629-30, a royal charter was obtained, consti-
tuting a legal corporation, under the title of the Governor and
Company of the Massachusetts Bay in New England.^

"This corporation was to elect annually a governor, a dep-
uty governor, and eighteen assistants, who were to hold
monthly meetings.

"The appointment of eighteen assistants shows that the
company was to be enlarged considerably beyond its present
numbers. General meetings were to be held four times a
year. The members had power to elect necessary officers, and
to defend their own territory by force against invasion or
attack. The governor and assistants might, if they thought
fit, administer the oaths of allegiance and supremacy to mem-
bers of the company. It is not unlikely that this clause may
have been inserted to meet the difficulty which had lately
arisen in the case of Lord Baltimore, owing to the absence of
any such provision in the Virginia charter.^

*Mr. Haven in Arch. Am., vol. 3, p. 50.

*The charter is in the Colonial Papers. It is also given in Hazard's Collec-
tion, vol. 1, p. 239; Poore, Charters and Const., 2d ed., pt. 1, p. 932.

■Doyle, English Colonies in America, vol. 1, Virginia, etc., p. 277.

12 NSW HAMPSHIRE PROVINCB LAWS.

"In anticipation of a future want the grantees resisted the
insertion of any condition which should fix the government of
the company in England. Winthrop explicitly states that the
advisers of the crown had originally imposed such a condi-
tion, but that the patentees succeeded, not without difficulty,
in freeing themselves from it.^ That fact is a full answer to
those who held that in transferring the government to Amer-
ica the patentees broke faith with the crown."^

The charter of 1629-30 provided also for the admission of
new freemen by a majority vote of the company, for the annual
election of officers by the whole body of freemen, and for four
great and general courts each year, to be held by the governor
or deputy-governor and seven or more of the assistants for the
time being.®

The great and general court was granted the right "to
make laws and ordinances for the good and welfare of the
said company, and for the government and ordering of the
said lands and plantation, and the people inhabiting and to
inhabit the same, as to tliem from time to time shall be
thought meet, so as such laws and ordinances be not con-
trary or repugnant to the laws and statutes of this our Realm
of England."^

For a time the powers of the great and general court were
allowed to lie dormant. At the first session, October 19, 1630,
it was ordered "by the general vote of the people and
the erection of hands" that the governor and deputy-
governor, with the assistants^ "should have the power of
making laws and choosing officers to execute the same." It
was further decided in May, 1631, that the assistants need
not be chosen afresh each year. But by 1634 the freemen,
aroused perhaps by the protests of inhabitants of Watertown
against taxation without representation, had come to feel
that they ought to participate in some effectual way in the
making of all the laws; and at the meeting of the general
court May 13, 1634, there were present, besides the governor,
deputy-governor, and six other assistants, twenty-four dep-
uties, three from each of the eight towns of the colony.*^ This
first representative assembly voted that the deputies should

*This is stated by Winthrop in a pamphlet written in 1644, and published
in an appendix to his life, vol. 2, p. 443.

^The most noteworthy upholder of this view is the lat^ Mr. Oliver, in that
remarkable book. The Puritan Commonwealth, published in 1856. Mr. Oliver
was a Boston lawyer and a zealous churchman. Provoked by the extravagant
and unreasonable praise so often bestowed on the founders of Massachusetts,
he has subjected their actions to a merciless scrutiny, always acute, and
sometimes just, but more often carried out in the spirit of a party advocate.
His work is of no small value to the student of New England history as the
pleading of an dd/oocatus diaboli, and as a counter against the too frequent
adulations of American writers.

■Poore, Charters and Constitutions, 2d ed., part 2, pp. 932-942.
*Poore, Charters and Constitutions, 2d ed., part 1, p. 937.
■See Winthrop's History of New England, ed. by Savage, vol. 1, pp. 152, 153,
and note; Hutchinson, History of Massachusetts, 3d ed., vol. 1, pp. 39, 40.

SOURCES AND ANTECEDENTS. 13

have all legislative powers of the freemen, "the matter of elec-
tion of magistrates and other officers only excepted, wherein
every freeman is to give his own voice." From this time
the records of the general court show that this body of dep-
uties exercised its powers vigorously and extensively. At
first the deputies were elected for each general court; from
1639 to 1640 they w^ere elected semi-annually, and after 1642
annually. The deputies did not sit as a separate house until
1644, when they were formed into a second chamber as a
direct result of the trouble over the Widow Sherman's pig.^

As early as 1634 settlers from Plymouth established a mil-
itarj' post on the Connecticut as an outi>ost against the
Dutch. Soon after, disaffected inhabitants of Massachusetts
Bay formed settlements at Windsor, Hartford, and Wethers-
field. The freemen of these towns, assembled at Hartford on
the 14th of January, 1639, adopted a written constitution.
It is worthy of note that this document contains none of the
conventional references to a "dread sovereign" or a "gracious
king," nor the slightest allusion to the British or any other
government outside of Connecticut itself, nor does it pre-
scribe any condition of church membership for the righ!t of
suffrage. It is regarded by writers of excellent authority as
the first written constitution by which a government was cre-
ated that is known to history.^ Although Massachusetts
Bay had previously governed these Connecticut towns by a
commission appointed for thait purpose, she now at least
tacitly recognized their right to an .independent government.

Up to 1640 the settlers of Providence seem to have lived
under little or no government. In 1638 there was an attempt
to establish a sort of church organization. In 1640, trouble
having arisen with the Inhabitants of Patuxet, something: in
the nature of a constitution was formulated; four arbitrators
were appointed to settle differences existing in the colony;
and provision was made for five selectmen, to be chosen by
the whole body of freemen, to dispose of the lands, to conduct
public affairs, and to admit new members.^ It is not clear
just how this form of government worked; but certain it is
that Providence was generally considered, from the Puritan
point of view, a "hotbed of anarchy," and in 1644 was refused
admission to the New England confederacy for the alleged
reason that it had no organized government.

The province of Maine had been granted to Gorges and
Mason as a part of the gran t of 1622, and also as a part of the

^See valuable introductions to Whitmore's Colonial Laws of Mass., ed. 1889;
Piske, Beginnings of New England, pp. 105-108; Savage's Winthrop's Hist, of
New England, p. 193.

*Fiske, Beginnings of New England, p. 127. Similar clainis are asserted in
. behalf of the New Hampshire constitution of 1776. Consider also in this
connection the relations of the several earlier colonial charters as instru-
mentalities in the establishment of governments.

f 'Doyle, Eng. Col. in Am., vol. 2, pp. 180-184.

14 NBW HAMPSHIRE PROVINCB LAWS.

Laconia patent of 1629. It had been mutually understood
that Mason was to hold the land west of the Paseataqua river,
and Gorges the territory lying east of that river. At the dis-
solution of the Council for New England in 1635, and the re-
sulting division of the territory, this previous understanding
between Mason and Gorges was confirmed. There had been
a few scattered fishing settlements along the Maine coast
since 1623, but little or no attempt at an organized govern-
ment. This province was confirmed to Gorges by a charter
from Charles the First in 1639, by which he was given absolute
right to establish such government for the province as seemed
best to him.^ In 1640 Gorges attempted to erect a govern-
ment which appears to have been somewhat of the nature of
a palatinate. It was the development of theories based on Old
World models, exceedingly complex, and in no practical sense
adapted to or workable in the conditions existing in a state,
such as the district or province of Maine was at the time, or
was destined to be in its future progress. Previous to the
time of the union of the New Hampshire towns with Massa-
chusetts Bay in 1641 there was no form of government in
practical operation in the province of Maine except the orders
emanating from the proprietors in general administration,
and such local municipal governments as the necessities of
the situation had compelled in the towns of Kittery, York,
and a few other trading and fishing settlements.^

New Hampshire in the First Period, 1623-1641, and the
Development of Local Self-Government in the
Pour Towns.

The essential differences existing between the towns
of New Hampshire and the towns of Maine on the
one hand, and those of Plymouth Colony and Massachu-
setts Bay on the other, arose from the presence and
prominence of landed proprietors, actively seeking to control
the planting of settlements and the constitution of govern-
ments for them in the territory north of the Merrimack, and
the absence of such interference and such superior personal
proprietorship in the two Massachusetts colonies. In the
latter "the court," described in the charters, very shortly be-
came a legislature; the magistrates or assistants became a
branch of the legislature; while the house of deputies was
an evolution in or an engraftment upon the system which, so
far as the terms of the instruments indicate the intention of
the English Company of Plymouth, was possibly never contem-
plated by the grantor. The fact that the towns of Maine and
New Hampshire did not federalize themselves, and did not at-
tempt the constitution of legislative bodies such as were

^Poore, Charters and Constitutions, 2d ed.Jpart 1, pp. 774-783.

"^Doyle, Eng". Col. in Am., vol. 2, pp. 216-218; Palfrey, History of New Eng-
land, vol. 1, pp. 524-528.

SOURCES AND ANTECEDENTS. 15

evolved in the other New England colonies, was doubtless
attributable to the obsftacles that existed in the proprietor-
ship of Mason and Gorges. Furthermore, there was among
the early inhabitants of Portsmouth and Dover no such mo-
tive for strenuous exercise and advancement of the theories
of self-government as were prevalent in the Plymouth and
Bay colonies. The Pascataqua plants were business ven-
tures. They were under the immediate direction of factors
or superintendents commissioned by the territorial propri-
etor. In the first years of the history of Portsmouth and
Dover the municipal law must be sought in the patents under
which the proprietors had title and exercised dominion — in
the few extant written records of the proceedings of the mer-
chant adventurers, — ^and in the necessity for some enforceable
rules of conduct, presumably devised with normal reference
to the contemporary statutes of the realm of England
and the common law of the mother country, and
with adaptation to the physical, social, and industrial
conditions of the locality.^ At this time the term
"New Hampshire" was unknown, and was not applied to this
domain until the grant of November 7, 1629. The grant of
Mariana^ to John Mason of March 9, 1621, in respect to the
description of the territory to be included in it, is somewhat
ambiguous; but the grant of the territory of Maine, of date
August 10, 1622, contained descriptions sufficiently explicit
for the conveyance of the lands lying "betwixt the rivers of
Merrimack and Sagadahock,"^ etc. Under a patent signed by
the Council for New England on the 16th of November, 1622,*
David Thomson was granted six thousand acres of land and
one island in New England. There is nothing extant to show
where in New England this grant of land and the island were
located, but there is evidence of an earlier patent to David
Thomsoni et als "for a pt of Piscatftowa River in New Eng-
land.''^ This would seem to indicate that he had had this
particular section in mind. Thomson conveyed one fourth
part of the island to three merchants of Plymouth,® and
agreed to convey in fee simple the fourth part of the six
thousand acres. Therefore, on the face of the papers, it was
as representing himself and the three merchants, and not as

^25 State Papers, 780, et seq., monograph by Joel Parker on "The Origin,
Organization, and Influence of the Towns of New England"; Dillon, Munici-
pal Corporations, vol. 1, ch. 1, §§ 9, 10; 24 State Papers, editor's preface; The
Origi'n of Municipal Incorporation in England and the U. S., by Amasa M.
Eaton, Proceedings of the American Bar Association, 1902, pp. 292-372.

''Charles Levi Woodbury, Capt. John Mason's Patent of Mariana, in Capt.
John Mason, pub. Prince Society, pp. 45-52.

^29 State Papers, 23-28.

*25 state Papers, 716.

•^25 state Papers, 720.

•id., 735-6. See article by Chas. Deane, "The Indenture of David Thomp-
son," pp. 713-739.

16 NEW HAMPSHIRE PROVINCE LAWS.

the representative of John Mason or the Laconia company,
as Belknap^ has it, that David Thomson, a Scotchman, came
to the banks of the Pascataqua in the spring of 1623, and
there established a permanent settlement vrithin the present
bounds of New Hampshire.^ He probably remained there
until 1626, when he took possession of an island in Massa-
chusetts Bay which was afterwards confirmed to his heirs by
the general court.

What property or business connections Thomson had, if
any, with Mason and Gorges does not certainly appear at this
time, and it is not clear what the evidence was upon which
Dr. Belknap relied in asserting that his relations were
with these parties in his operations at Pascataqua. The
grant to the Laconia company did not exist until after the
death of Thomson. His removal from these premises in 1626,
after three years' occupancy, and the subsequent occupation
of them by Slason and his associates in the Laconia company,
might, perhaps, suggest an inference that there was a conflict
in which the title set up by Mason prevailed. It should be
noted that Mr. Jenness remarks that "the Laconians hired
the buildings which had been put up seven years before by
David Thomson at the smaller mouth of the Piseataqua, and
established there, under command of Capt. Walter Neale, a
factory, or entrepot, as a basis for their magnificent design
upon the New York lakes. "^

It is not pertinent to the purpose of this article to intervene
in the controversy between those who, with Dr. Quint, would
set the planting of the colony at Dover Neck, at a date about
the same as that of Thomson at Odiorne's point, and those
who, with Mr. Jenness, place the Dover settlement five years
later, in 1628.^

On November 7, 1629, the Council for New England
granted to John Mason a part of the same territory that had
been included in the Mason and Gorges patent of August 10,
1622, namely, from the middle of the Merrimack river to the
Pascataqua; and ten days later to Gorges and Mason, with
such others as they should admit, under the name of the
Province of Laconia, the land west and northwest of the
New Hampshire grant, on the borders of the Iroquois lake
(Lake Champlain).*^

The Laconia company was formed immediately after the
failure of the Canada company, with the object of gaining a
part of the profitable trade with the Indians about the Iro-

^Belknap, Farmer's ed., p. 4.

-See Appendix, post, pp. 770-772.

*John S. Jenness, Notes on the First Planting of New Hampshire, 25 State
Papers, 661-709.

*25 State Papers, 661-709; Quint, Historical Memoranda of Ancient Dover,
pp. 16, et seq,; Tuttle, Hist. Papers, p. 178 and note; same, this volume, p. 773.
^^29 Slate Papers, 28-38.

SOURCES AND ANTBCEDEKTS,

17

quois Lake, which was supposed to be near to or, indeed, to
form the source of the Pascataqua river. Oapt. Walter
Neale was put in command of an expedition sent in quest of
the Iroquois country, and in the baxk Warwick landed at
Pascataqua in June, 1630. But the venture was a failure.
"The Laconia company simply established two or three trad-
ing posts on the river and at the Shoals, after the manner of
the East India factories, and for a short time carried on the
peltry traffic and the fisheries at a heavy loss, until, at the end
of three years, in bankruptcy and disaster, the company dis-
solved and vanished away."^

On March 12, 1630, the Council for New England granted to
Edward Hilton and his associates, who had previously laid
the foundation for a successful settlement on Hilton's Point,
a tract of land three miles wide, south of the Pascataqua and
up to the fall of the river. In November, 1631, they also
granted to the Laconia company, which by its grant of 1629^
received no land in New Hampshire, a tract of land lying
both sides of the Pascataqua river, but at no point conflict
ing with the Hilton patent.^

Again, on the 22d of April, 1635, the Council for New Eng-
land granted to John Mason New Hampshire and Masonia,
together with all the rights, powers^ etc., which they them-
selves possessed. This was Mason's share at the division of
New England, apportioned a few weeks before the Plymouth
Company surrendered its Charter. In this grant was in-
cluded the south half of th^ Isles of Shoals.

There is in the possession of the Maine Historical Society
a copy of a royal charteir bearing date of August 19, 1635,*
which confirms John Ma^on in the territory finally granted
by the Council for New' England April 22, 1635. By this
charter he was accorded rights of government not unlike
those granted in 1639 to Gorges for his province of Maine.
The authenticity of this charter has been seriously ques-
tioned, as no record of it is known to exist in the British
archives. As John Mason died in the following December,
he may have been unable to give personal attention to the
proper recording of his charter. Certainly there is nothing
surprising or improbable in such a grant from Charles to a
loyal subject like John Mason, who had spent many years in
his service; who was a strong supporter of the Church of Eng-
land, and consequently a thorn in the flesh of the Puritans of
Massachusetts Bay.^

^Jenness, Isles of Shoals, p. 58.

*25 State Papers, 698-705; 29 State Papers, 39-43; Quint, Hist. Memoranda
of Ancient Dover, p. 17.

*For a copy of this charter with critical comment, see Tuttle and Dean,
Capt. John Mason (Prince Society), pp. 355-378; also 29 State Papers, 69-85.

*"The last winter Capt Mason died. He was the chief mover in all attempts
against us, and was to have sent the general governor, and for this end was

18 HBW HAMPSHIRE PROVINCB LAWS.

The validity of the like charter issued four years later
to Ferdinando Gorges is not questioned. All the reasons
that induced such a grant to Gorges would operate in
favor of a similar one to Mason. The argument against
its validity, that it may have been a forgery executed for
use in the subsequent litigation in which the Mason heirs
were engaged, would have very much greater weight if there
were any evidence that it was ever put to such use. The copy
comes from the proper custody, that is, the office of the sec-
retary of the province, and bears the certification of Mr. Secre-
tary Chamberlain, one of the earliest incumbents of that
office. The dispersion and suppression of papers which be-
long to the chain of evidence in Mason's title were entirely
possible when those papers were later in the custody of
persons who undoubtedly removed and destroyed the leaves in
the court records in which the judgments in favor of Mason
were entered.^

A bit of contemporary evidence concerning local opinion as
to the nature and extent of the governmental rights con-
tained in the various patents granted by the Council for New
England may be found in "A Relation Concerning the Estate
of New England," assigned by Jenness to about the year
1636. After mentioning twenty different patents the writer
continues:

"The above menconed Patents are not all of one kinde, for
some are in the nature of Corporacons and have power to
make Lawes, ffor the goveminge of their plantacons, others
are but onely assignmn'ts of soe much Land to bee planted
and possessed without power of govemm't.

"Of the first sort are onely theis ffower, vizt:

"1. New Plymouth 2. Massachusetts 3. Pascataquack & 4.
Pemaquid.

"The Civill governmn't of the Colonies remaine in the power
of those who are Principall in the Patents of w'ch those w'ch
have authoritie to establish lawes, doe Execute theire Juris-
diction & soe ffar as I could understand, as neere, as may bee
accordinge to the lawes of England, And those whoe have
not that legall power doe governe their servants and Ten-
nants in a Civill way, soe ffar as they are able."^

providing^ ships; but the Lord, in mercy, taking- him away, all the business
fell on sleep." Winthrop, History of New England, Savage's ed., vol. 1, p.
223. A sequence to the death of John Mason, important in respect to the
possibility of the accomplishment and maintenance of a union of the towns
of New Hampshire with those of Massachusetts Bay, was the fact that the
assertion of the Masoniau title was kept in abeyance for many years, in the
widowhood of Capt. Mason's daughter, and until the able and aggressive
grandson, Eobert Tufton Mason, attained age and position which enabled
him to procure the severance of the New Hampshire towns from Massachu-
setts Bay, and to compass the erection of a new province largely for the con-
servation of his landed interests.

^Farmer's Belknap, pp. 149, 150, 157; 3 Prov. Papers, 297, 298, 299.
*17 State Papers, 491, 492. It is not clear who was the author of this "Re-
lation." The powers of government in the Laconia patent seem as extensive

SOURCES AND ANTBCBDBNTS. 19

A question of great interest to the student of early New
Hampshire history, and one which was of some importance in
its bearing on the long litigation conducted by the various
claimants for New Hampshire soil, is that relating to the au-
thenticity of the Wheelwright deed, by which it is claimed
that on the I7th of May, 1629, John Wheelwright purchased
from Passaconaway and other Indian sagamores a large tract
of land in the region of Pascataqua, and in the same territory
which was soon after granted to John Mason by the Council
for New England. Like all deeds from the Indians it en-
countered serious antipathy and prejudice as evidence in de-
termining titles. Governor Andros declared that such deeds
were no better than "the scratch of a bear's paw."^ Mr.
Charles H. Bell, in his work on John Wheelwright in the
Prince Society publications, has a very careful review of the
evidence bearing upon the question of the authenticity of this
deed, together with its interesting history in its entirety.^

The records of the town of Portsmouth were subjected to
a singular treatment in 1652. The local authorities, regard-
ing the greater part of the recorded matter as obsolete or
superfluous, caused some extracts which they supposed might
be of use to be entered in a new book, and the old ones were
either lost or destroved.^

The Dover records now extant reach back to an earlier *
date. It is probable, however, that the earliest records of
that town are also lost, as the oldest official account of any
town meeting in Dover is found in a book entitled "No. 7 old
Book of Records."*

The records of Exeter are in a more complete and satisfac-
tory form. They extend back into the period prior to the
union, with Massachusetts Bay, to which Exeter did not be-
come a party until 1643.*^

The early records of Hampton are very nearly contempo-
rary with the existence of the town, including the minutes of
a town meeting, probably the first that was holden, as early
as October 31, 1639. Hampton, however, was regarded from
the outset as a Massachusetts town, the act of incorporation

as those in the Pascataquack patent granted somewhat later. While the
writer was right in saying that the patents were "not all of one Kinde" he
w^as probably not familiar with the exact provisions relating to the powers
of government contained in some of the patents. See also opinion of Mr.
Justice W. S. Ladd, 57 N. H., p. 79.

'Farmer's Belknap, p. 119; see also Fiske, New France and New England.
1902, p. 238.

*Bell, John Wheelwright, Prince Society pub., pp. 79-142. For another view
of this question see Winthrop's Hist, of N. E., Savage's edition, vol. 1, Appen-
dix H, pp. 486-514; also 1 Province Papers, pp. 56-60, and index.

•Farmer's Belknap, p. 28.

*Quint, Ancient Dover, pp. 1, 31.

'Bell, History of Exeter, pp. 43, 435.

20 NEW HAMPSHIRE PROVINCE LAWS.

under which it was organized having been granted by the

Bay colony.^ ^ .

It will be discovered that the material for an accurate
description of the rules and methods of local government
which prevailed in the early Pascataqua settlements is very
meager. Dr. Quint says: "Under Edward Hilton, from 162a
to 1631, there could have been no civil organization. Nor did
Thomas Wiggin, who came in 1631, returned in 1632, and led
hither a reinforcement in the autumn of 1633, bring with it
any power of government. By some historians he has been
absurdly styled ^Governor.' He was merely the agent of an
English land and trading company. That company itself
had no power of civil government. Capt. Wiggin had, indeed^
the power to allot lands to settlers, and formal descriptions of
some of these grants are extant, copied in the next decade.
There is some reason to suppose that William Waldron may
have made the original papers.

"In the autumn of 1637, the people formed a ^Combination^
for government, and Kev. George Burdett was placed at the
head. It has been ridiculously stated that he 'thrust ouy
Capt. Wiggin, a man who was never in. The statement is
one of those perversions which a student of early New Hamp-
shire history comes to expect as a matter of course. The
simple fact"^ was that, in the absence of government, the
growing colony found it necessary to organize. An inde-
pendent government continued till a unipn with Massachu-
setts, 9th Oct., 1641. But an intermediate 'Combination' had
been made 22 Oct., 1640, whose records were in a volume ex-
tant in 1682, to which Gov. Cranfield and the historian Hub-
bard had access. Whether the volume was taken to England
in the Masonian trials, or never emerged from the hiding
place where the people concealed it in those suits, is a mat-
ter of sad conjecture.

"In connection with the above notice of errors, it may be
well enough to allude to two or three others. One is that
Thomas Roberts was never ^Governor' in Dover; he was
President of its court — its court, doubtless, being but little
more than a board of selectmen. More stupid was the ab-
surdity that imposed upon Hubbard a belief that Edward
Colcord was once ^Governor'; he was one of three men ap-
pointed to decide cases 20 shillings in value. Entirely inex-
cusable is the statement in some state publications, as in a
Register now before us, that Dover was incorporated 22
Oct., 1641. Some blunderer took the month and day of the
second Combination and prefixed them to the year of the
union with Massachusetts and called the hybrid result the
date of incorporation. Dover never was incorporated.

"Dover was independent until annexed to Massachusetts^
9 Oct. 1641. At the next general court, that of May, 1642^

^Dow, History of Hampton, vol. 1, p. 15.

SOURCES AND ANTBCBDENTB. 21

Savage says that William Waldeme appeared from Dover
and sat one day. The general eonrt held sessions in spring
^nd autumn of each year. Deputies were chosen sometimes
for one session, sometimes for the year.''^

The facts which throw light upon the local government of
the settlements on the lower Pascataqua are very fully mar-
shalled and clearly presented in recent publications which
include The Indenture of David Thomson^ by Charles Deane,
Ifotes on the First Planting of New Hampshire,^ by John
S. Jenness, Life of John Mason,* by Tuttle and Dean, and
Historical Papers, by Charles W. Tuttle, posthumously pub-
lished.*^

The early settlers of New Hampshire had among their
number no Bradford nor Winthrop to write out their annals,
and to give posterity an account of all the details, great and
«mall, which related to the inauguration and progress of
their enterprises.

The great majority of the first Englishmen who occupied
New Hampshire soil may be characterized as industrious,
enterprising, and unpretentious farmers, fishermen, and lum-
bermen, who crossed the ocean under commonplace induce-
ments and employment from the proprietors of the land pat-
ent, to prosecute their ordinary vocations. It may be
assumed, also, that they manifested little concern about the
establishment of a state or a church, the conservation of re-
ligious freedom, the propagation of the gospel, or the con-
version of the heathen. If properly classed as churchmen
and royalists, they have left no evidence that they were of a
class that were obtrusive or aggressive in respect to their
religious or political ideas.®

Government in these settlements, later considerably in-
creased in population, was necessarily to some extent influ-
enced and controlled by the Laconia company and its repre-
sentatives. The agencies of this company were manifest-
ing their principal activity between the years 1630 and 1633.''

*Dr. A. H. Quint, Historical Memoranda of Ancient Dover, pp. 17, 18.

*25 State Papers, 711-739.

■25 State Papers, 661-709.

*Voluine of the Prince Society publications.

•See also Adams' Annals of Portsnciouth, Brewster's Bambles about Ports-
mouth, Albee's History of New Castle, Jenness' History of the Isles of Shoals,
Dow's History of Hampton, Brown's History of Hampton Falls, Bell's His-
tory of Exeter, and Historical Memoranda of Ancient Dover, by Dr. Quint.

•Shirley, Early Jurisprudence of New Hamp., pp. 15, 16. John J. Bell,
Address before N. H. Hist. Soc, ProceedingTs, vol. 2, pp. 182-197; Copp v. Hen-
niker, 55 N. H., p. 186; Perkins v. Scott, 57 N. H., p. 65; Colonial Life in New
Hampshire, J- H. Fassett, 1903; Doyle, English Colonies in America, vol. 2,
The Settlements North of Massachusetts, pp. 201-219; Judicial History of
^ew Hampshire before the Revolution, by Salma Hale, Monthly Law Report-
^, October, 1855; same article reprint, 3 Grafton and Coos Bar Association
Proceedings, 53.

^Jenness, The Isles of Shoals, pp. 58-69. The statement of Mr. Whiton on
this point, History of New Hampshire, 1834, p. 152, is inaccurate.

22 NIW HAMPSHIRB PReVINCB LAWS.

The interests of John Mason continued dominant after the
failure of the enterprises of the Laconia company until 1635»
This was the period in which the so-called governorships of
Wiggin at Dover and of Neale and Williams at Pascataqua
intervened. The ordinary forms and methods of town govern-
ment were then in prospect, and later to be made possible by
the death of the proprietor and the immigration of enterpris-
ing and self-reliant people from the neighboring colonies, who
had become acquainted not only with the machinery but with
the advantages of local self-government in towns.^

Dr. Quint contends that, if Captain Wiggin had author-
ity from the patentees in England to act as governor, these
patentees had themselves no right of government. "Nor,"
he continues, "had the Bristol men whose right these pat-
entees had purchased, any power of government; nor did
Hidton and others, who had sold to the Bristol men their
Dover and Squamscott patent, have any power of govern-
ment; nor had the ^Council at Plymouth^ in England, who
in 1631 gave these patents to Hilton and his associates;
neither had Oapt. John Mason, whose grants covered the
same territory, for, as the English courts say in 1677, ^as to
Mr. Mason^s right of government within the soil he claimed,
their Lordships, and indeed his own counsel, agreed he had
none; the great Council of Plymouth, under whom he claimed
having no power to transfer government to any.' What-
ever civil power, therefore, Capt. Wiggin possessed was a
clear case of ^squatter sovereignty.' And what there was
was of a very weak kind, never extending to anything very
serious. Wiggin himself was aware how doubtful his
authority was."^

The legal position thus stated was one on which the Puri-
tans were well informed, and a contrary theory, as already
shown, was actually worked out in the Plymouth and Massa-
chusetts Bay colonies. Had Capt. John Mason been per-
mitted to continue the prosecution of his enterprise for a few
years longer, with suflBcient financial resources, and with the
active endorsement of the home government, the accomplish-
ment of his idea of a palatinate might have been more prom-
ising than the students of the affairs of that period are now
-disposed to admit.

Before passing on in the narrative and without, at this
point, entering further upon a discussion of the validity of Dr.
Quint^s position in its legal aspects, it may be remarked that
a very elaborate and conclusive treatment of the right of the
Massachusetts Bay Company and Colony to legislate for them-

*New Hampshire State Papers, vols. 27, 28, 29, original documents and edi-
tor's prefaces to same volumes, relating to various aspects of the Masonian
title and Masonian controversy.

•Quint's Ancient Dover, p. 423, Opinion by Justice W. S. Ladd, in Perkins !?•
Scott, 57 N. H., particularly commenison p. 79.

SOURCES AND ANTECBDBNTS. 23

selves may be consulted in a lecture by Joel Parker, formerly
chief justice of New Hampshire, and later Royall professor of
law in Harvard University, delivered at the Lowell Institute
February 9, 1869, on the subject, "The First Charter and the
Early Religious Legislation of Massachusetts." Of course
the fact is not to be overlooked that the patent of the Ply-
mouth Company to the colony of Massachusetts Bay was re-
inforced by the crown charter of 1628-9.

The next stage in the development of definite schemes of
local self-government in these towns is observed, in the con-
crete, in the adoption of the town system of government
which was then prevalent in New England. The paucity of
town records for this period renders the results of investiga-
tion as to the powers assumed and the methods employed in
these practically independent town governments imperfect
and unsatisfactory. The Exeter records^ afford glimpses of
ordinances enacted by the people in town meeting, or pro-
mulgated by the magistrates. More important, however, are
the "Combinations for local Government.'^ There is evi-
dence here of a distinct purpose on the part of each of the
three towns of Portsmouth, Dover, and Exeter to adopt a
basis for a permanent government upon the democratic
method. This must certainly be regarded as in the nature
of organic law. A more extended treatment of these in-
struments is to be found in the papers of Mr. Tuttle.^

The Compact fob Union with Massachusetts Bay and
THE Rights and PRiviLEGiBS Conceded to the Towns
OF New Hampshire.

By 1641 all of the New Hampshire towns had made some
provision for local self-government. It will be remembered
that Hampton, from the first, had been claimed by Massa-
chusetts Bay, and that colony continued to exercise jurisdic-
tion over it. But the conditions and prospects of the other
three towns were not encouraging. After the death of John
Mason in 1635 they seem to have been forgotten by the home
government, and political conditions and tendencies in Eng-
land at the time did not promise these obscure colonists much
hope for the future. Massachusetts Bay, from an early date,
had claimed them as within her grant, and as more and
more of the Bay Puritans secured, by purchase, shares in the
Pascataqua and Hilton patents, her claim was regarded with
favor by a party of some strength in all of the towns.^

*1 Province Papers, 128-145; BeU's Exeter, pp. 433-447; Appendix B, this
volume, pp. 738-743.

'Tuttle, Historical Papers; id,, Appendix C, this volume, pp. 744-747.
•25 State Papers, 691, 692.

24 NEW HAMPSHIRB PROVINCI LAWS.

Despite the fact that the course of the towns in adopting
the "Combinations" showed a creditable respect for law, it
was found difficult to preserve order among the people.
This is not surprising when we recall that such adventurers
as Burdett, Larkham, and Underhill were among their
chosen rulers. As the towns were a frontier region, exposed
to the hostilities of the French and Indians, whose most
active spirits were licentious clergymen exiled from Massa-
chusetts Bay, it was a most natural course to seek a political
union, under favorable terms, with the strong contiguous
Puritan colony.^

In 1639 the inhabitants of Dover petitioned the general
court of Massachusetts to receive them under her jurisdic-
tion; but the proi)osed conditions of union were unsatisfac-
tory. In June, 1641, the patentees of both the Hilton and
Pascataqua patents transferred to Massachusetts all rights
of jurisdiction and civil government which they themselves
possessed, reserving to themselves the title to the larger part
of the land; and in September following the towns of Ports^
mouth and Dover were formally annexed under an act secur-
ing all rights possessed by the citizens of the Bay colony. A
copy of the concession of June, 1641, and of the act of union,
September, 1641, follow:

1641.
2 June.

The 14th of the 4th Mo, 1641.
Whereas some lords, knights, gentlemen, & others did pur-
chase of ISIr. Edward Hilton & of some mrchants of Bristol!
two pattents, the one called Wecohannet, or Hiltons Point,
comonly called or knowne by the name of Dover, or Northam,
the other pattent set forth by the name of the south part of
the ryver of Pascataquack, begining at the sea side, or
neare there abouts, & coming round the said land by the
ryver unto the falls of Quamscot, as may more fully appear
by the said grant: And whereas, also, the inhabitants resid-
ing at ^sent wthin the limits of both the said grants have of
late & formerly complained of the want of some good gov-
emm't amongst them, & desired some help in this ^ticular
fro the jurisdiction of the Massachusetts Bay, whereby they
may bee ruled & ordered according unto God, both in church
and comon weale, and for the avoyding of such unsuflferable
disorders, whereby God hath bene much dishonored amongst
them: Those gentlemen, whose names are here specified,
George Wyllys, gent, Kobt Saltonstall, gent, Willi: Whiting,
Edward HoUiock, Thomas Makepeace, partners in the said

*Mr. Jenness and Mr. Tuttle both give the subject of the first union special
attention, and their works contain discussions of the Puritan purposes and
methods in respect to this consummation in distinct contrast with the ordi-
nary presentation of the subject from the Puritan point of view.

SOURCBS A5D ANTECEDENTS. 25

pattent, do, in the behalfe of the rest of the patentees, dis-
pose of the land & jurisdiction of the ^mises as followeth,
being willing to further such a good worke, have hearby for
themselves, & in the name of the rest of the patentees, given
up & set over all that power of jurisdiction, or govemm't, of
the said people dweling or abiding wthin the limits of both
the said pattents, unto the govmm't of the Massachusetts
Bay, by them to bee ruled and ordered in all causes, crim-
inall & civill, as inhabitants dweling wthin the limits of the
Massachusets governm't, & to bee subject to pay in church
and comon weale as the said inhabitants of the Massa-
chusetts Bay do, & no other.

And the freemen of the said two pattents to enjoy the like
liberties as other freemen do within the said Massachusetts
govemmt, & that there shall bee a court of justice kept
wthin one of the 2 pattents, wch shall have the same powr
that the Courts of Salem & Ipswich have; provided, alwayes,
& it is hearby declared, that one of the said pattents, that
is to say, that on the south side of the ryver of Pascataquack,
& in the other pattent one third ^ft of the land, wth all im-
proved land in the said pattent, to the lords & gentlemen, &
other owners, shalbee & remaine unto them, their heirs &
assignes forever, as their proper right, & as haveing true in-
terest therein, saveing the interest of jurisdiction to the Massa-
chusets.

And tl^e said pattent of Wecohannett shalbee divided, as
formerly is exprest, by indifferent men equally chosen on
both sides, wherby the plantation may bee furthered, & all
occasions of difference avoyded.

And this honored Court of the Massachusets doth hearby
^mise to be helpfuU to the maintenance of the right of the
said patentees, in both the said pattents, in all legall courses^
in any part of their jurisdiction.

Subscribed by the forenamed gentlemen in the ^sence of
the Generall Court assembled the day afore written.

[Mass. Records, vol. 1, p. 324.]

1641.
2 June.

Whereas the lords & gentellmen patentees of Dover &
other tracts of land upon the ryver of Pascataque have
passed a grant of the same to this Court, to bee forever an-
nexed to this jurisdiction, wth reservation of some sPt of the
said lands to their owne use, in regard to ^priety,* it is now
ordered, that the ^sent Govrnor, assistet wth 2 or 3 of the
other matrats, shall give comission to some tneete ^sons to
go to Pascataque, & give notice hearof to the inhabitants
tliere, & take order for the establishing of government in the
limits of the said patentees, & to receive into this jurisdic-

26 NEW HAMPSHIRE PROVIKCB LAWS.

tion all other inhabitants upon the said river as may & shall
desire to submit themselves thereunto.
[Mass. Records, vol. 1, p. 332.]

1641.

7 October.

Whereas it appeareth that by the extent of the line, (ac-
cording to or patent,) that the ry ver of Pascataquack is wthin
the jurisdiction of the Massachusetts, & conference being
had (at severall times) wth the said people, & some deputed
by the Generall Court, for the setteling & establishing of
order in the administration of justice there, it is now ordered,
by the Genrall Court, houlden at Boston, the 9th day of the
8th mo, 1641, & wth the consent of the inhabitants of the
said ryver, as followeth: —

Impr: That from hencefourth the said people inhabiting
there are, & shalbee, accepted & reputed under the govern-
ment of the Massachusets, as the rest of the inhabitants
wthin the said jurisdiction are.

Also, that they shall have the same order, & way of admin-
istration of justice, & way of keeping Courts, as is estab-
lished at Ipswich & Salem.

Also, they shalbee exempted fro all publique charges,
other than those that shall arise for or from among them-
selves, or fro any occation or course that may be taken to
^cure their owne sP^ good or benefit.

Also, they shall enjoy all such lawful liberties of fishing,
planting, felling timber, as formerly they have enjoyed in the
said ryver. Mr Symon Bradstreete, Mr Israeli Stoughton,
Mr Samu: Symonds, Mr Willi: Tynge, Mr Francis Williams,
& Mr Edward Hilton, or any four of them, whereof Mr Brad-
streete or Mr Stoughton to bee one, these shall have the same
power that the Quarter Courts at Salem & Ipswich have;
also the inhabitants there are alowed to send two deputies
from the whole ryver to the Court at Boston.

Also Mr Bradstreete, Mr Stoughton, & the rest of the com-
issioners shall have i)ower at the Court at Pascataquack t©
appoint two or three to joyne wth Mr Williams & Mr Hilton,
to governe the people, as the magistrates do heare, till the
next Generall Court, or till the Court take further order.

It is further ordered, that untill o[u]r comissionrs shall ar-
rive at Pascataquack, those men who already have authority
by the late combination to governe the people there shall
continue in the same authority & power, to bee determined
at the comeing of the said comissioners, & not before.

[Mass. Records, vol. 1, pp. 342, 343.]

It will be seen from these records that most favorable
terms were granted by the general court of Massachusetts;

r

80URCKS AND ANTBCBDENTS. 27

but this body was induced to go further and make an excep-
tion in favor of the New Hampshire towns that must have
been viewed with many misgivings by the strictest sect of the
Puritans. In the acts of the general court for September 27,
1642, the following entry appears:

"It is ordered that all the ^sent inhabitants of Pascataq
who formerly were free there shall have liberty of freemen
in their several townes to manage all their towne affaires, &
shall each towne send a deputy to the Gen'rall Court, though
they be not at ^sent church members."^

And in this way New Hampshire contributed something to
the advancement of civil and religious freedom towards that
state of ample development which was attained under the
later American constitutions.

In 1643 Exeter, upon a second petition to the general court,
the first probably not disclosing the proper spirit of submis-
sion, was admitted under the same terms as the other towns,
with the exception that this town was not to be allowed a
deputy to the general court. "But this was no [unmitigated]
hardship, as the inhabitants could ill afford the expense
which would thereby fall upon them, and their apparent need
of a representative in the legislature was small."^

At this time Newcastle, although an important settlement,
was still a part of Portsmouth; and that part of .the Isles of
Shoals which had early become commercially important was
within the boundaries of the province of Maine.^

The Natitrb and Extent of the Lawmaking Powers with
Which the Company and Colony of Massachusetts
Bay Was Invested.

Among the fundamental facts which underlie the history of
the statute law of New Hampshire these will be recognized
as indisputable; the beginning of an original system of stat-
ute law of local construction in Massachusetts Bay was defi-
nitely marked by the promulgation of the Body of Liberties
in 1641; the union of Portsmouth and Dover (soon to be fol-
lowed by the accession of Exeter) with the Bay Colony was
very nearly contemporary with the appearance of the Body of
Liberties as an experiment in written colonial law for the
ruling and direction of the people of all the towns of the two
united colonies; this union oh the part of the New Hamp-
shire towns was with the Puritan state of Massachusetts, and
not with the Pilgrim colony of Plymouth; the system of
statutes which was developed from the Body of Liberties, and

^Mass. Records, vol. 2, p. 29; see also Doyle, Englisli Ck)lonie8 in America,
vol. 2, pp. 213, 214.

"Bell, History of Exeter, p. 46.

'Jenness, Isles of Shoals, pp. 105, et seq.

28 NBW HAMPSHIRE PROVINCE LAWS.

which had resulted in 1679 from thirty-eight years of legisla-
tion, was valid law as well for New Hampshire as for Massa-
chusetts Bay ; there was no requirement for the transmission
of those statutes for revision by the home government, and no
evidence has appeared that they were even specifically re-
pealed by the king in council or by act of parliament; they
represented, therefore, the will/ of the people whose representa-
tives gave them enactment, more fully, fairly, and certainly
than any subsequent colonial legislation which was subjected
to the veto power of crown governors and the revision of the
home gove!rnment; the laws enacted in the period between
1641 and 1679 were necessarily the foundation of much of the
positive law subsequently enacted or re-enacted, and the sub-
stance of a large part of the common or unwritten law which
was recognized by the people and continued to be an efficient
legal element in colonial jurisprudence, both in New Hamp-
shire and Massachusetts, however difficult it may be at the
present time exactly to identify and measure it. It is also
a historical fact of primary importance in the consideration of
the validity of the statute law of Massachusetts Bay, enacted
in the first period, that the right of the colony to exercise the
IK>wers of legislation in the manner, for the purpose, and to
the extent that such powers were exercised has been repeat-
edly but never successfully challenged.^ The argument in sup-
port of the validity of the powers exercised by the colony of
Massachusetts Bay in the period between the grant of the first
charter and its abrogation has not been presented with more
cogency and conclusiveness than that which characterizes the
review of the question by Joel Parker in his lecture at the
Lowell Institute, before cited, on "The First Charter and the
Early Eeligious Legislation of Massachusetts." While the
completeness and accuracy of Judge Parker's examination of
the subject at once deter others from an attempt to bring new
and original considerations to bear on the points at issue, and
render such an essay on the lines which he pursued almost or
quite superfluous, the employment of extracts from his
monograph may serve to outline the direction of his reasoning,
and to recall this eminent authority as the best modern repos-
itory of the Puritan defense of the early Puritan legislation.

"Whatever rights the charter purported to grant," says
Judge Parker, "vested lawfully in the grantees.

"The title to unoccupied lands belonging to Great Britain,
whether acquired by conquest or discovery, was vested in the
crown. The right to grant corporate franchises was one of
the prerogatives of the king. And the right to institute and
to provide for the institution of colonial governments, whether
by charter, proprietary grant, or commission, was likewise one

^Chalmers, Annals, 1780; Oliver, Puritan Commonwealth, 1856; Emancipa-
tion of Mafisachusetts, Brooks Adams, 1887.

SOURCBS AND ANTECEDENTS. 29

of the prerogatives. Parliament had then nothing to do with
the organization or government of colonies.

"The confirmation, therefore, in the charter, of the grant of
the lands from the Council of Plymouth (which derived title
from the grant of James I., and which could grant the lands,
but could not grant nor assign powers of government), with a
new grant, in form, of the same lands, gave to the grantees a
title in socage; substantially a fee-simple, except that there
was to be a rendition of one-fifth of the gold and silver ores.
The grant of corporate powers, in the usual form of grants to
private corporations, conferred upon them all the ordinary
rights of a private corporation, under which they could dispose
of their lands, and transact all business in which the company
had a private interest. And the grant of any powers of
colonial government, embraced in the charter, was valid and
effective to the extent of the powers which were granted,
whatever those powers might be; the whole, as against the cor-
poration, being subject to forfeiture for suflScient cause.

"The grant and confirmation of the lands, and the grant of
mere corporate powers for private purposes, were private
rights, which vested in the grantees; and which the King
could not divest, except upon some forfeiture regularly en-
forced. Upon such forfeiture, the corporation would be dis-
solved, and all of the lands belonging to it would revert, in
the nature of an escheat. But this would not affect valid
grants previously made by it

"The grant of power to institute a colonial government,
being a grant not for private but for public purposes, may
have a different consideration. Whether by reason of its con-
nection with the grant of the lands and of ordinary corporate
powers, it partook so far of the nature of a private right that
it could not be altered, modified, or revoked, except on for-
feiture, enforced by process; or whether this part of the grant
had such a public character that the powers of government
were held subject to alteration and amendment, is hardly
open to discussion. At the present day it is held that munici-
pal corporations, being for public uses and purposes, have no
vested private rights in the powers and privileges granted to
them, but that they may be changed at the pleasure of the gov-
ernment. That principle seems to be equally applicable to
a grant of colonial powers of government; and the better opin-
ion would seem to be that it was within the legitimate prerog-
ative of the king, at that day, to modify, and even to revoke,
the powers of that character which had beeja granted by the
crown, substituting others appropriate for the purpose.^

*If this distinction between public and private corporations, well settled at
the present time, was not then recog-nized, it is not because there has been a
change of principle since the period; but because the principles which gov-
ern these two descriptions of corporate rights were not then well developed;

30 NEW HAMPSHIRE PROVINCE LAWS.

"If the king had assumed to revoke the powers of govern-
ment granted by the charter, without substitution, or if he
had imposed any other form of government, by which the es-
sential features of that which was constituted under the char-
ter would have been abrogated, it might have been an arbi-
trary exercise of power, justifying any revolutionary resist-
ance which the colony could have made. But the crown,
under the then existing laws of England, must have possessed
legally such power over the colony as the legislature may
exercise over municipal corporations at the present day. The
charter, so far as the powers of government were concerned,
could not be treated as a private contract.

"The charter was originally the only authority for the gov-
ernment of the territory embraced in it. The Council at Ply-
mouth, in the County of Devon, never attempted to exercise
powers of government over the colony of Massachusetts; and
there was no compact or agreement to form a government
The grantees professed, in all they did, to act under the char-
ter, and, as they contended, according to the charter.

"We are to look to the terms of the charter, therefore, and
to a sound construction of its provisions, to ascertain what
rights of legislation, religious or otherwise, were possessed by
the grantees.

"The charter bears date March 4 1628 [29].

"From a careful examination of it, I have no hesitation in
maintaining five propositions in relation to it.

1. "The charter is not, and was not, intended to be an act
for the incorporation of a trading or merchants' company
merely. But it was a grant which contemplated the settle-
ment of a colony, with power in the incorporated company to
govern that colony. ♦ ♦ ♦

2. "The charter authorized the establishment of the gov-
ernment of the colony within the limits of the territory to be
governed, as was done by the vote to transfer the charter and
government. ♦ ♦ ♦

3. "The charter gave ample powers of legislation and of
government for the plantation, or colony, including power to
legislate on religious subjects, in the manner in which the
grantees and their associates claimed and exercised the legis-
lative power. ♦ ♦ ♦

4. "The charter authorized the exclusion of all persons
whom the grantees and their associates should see fit to ex-
clude from settlement in the colony; and the exclusion of
those already settled, by banishment as a punishment for
offences. ♦ ♦ ♦

and hence the claim of the crown to power over both public and private
rights, and the claims of the colonists under their charter, without any dis-
tinction between the two. When a right application is made of this princi-
ple to the colonial history, it will show that the complaints of the colonists
. of infringement of their charters were not all well founded.

SOUKCKS AND ANTECKDEKTS. 31

"They were the owners of the soil; and, in the absence of
conditions or limitations, the owner of such a title has an ex-
clusive right of possession. They were the grantees of a char-
ter of incorporation; and such grantees, unless there is some
special provision or circumstance controlling them, may de-
termine who shall be admitted to a participation in their cor-
porate rights. ♦ ♦ *

5. "The charter authorized the creation and erection of
courts of judicature to hear, try, and determine causes, and to
render final judgments and cause execution to be done, with-
out any appeal to the courts of England, or any supervisory
power of such courts."^ ♦ « »

New Hampshire in the Period of Union with the
Massachusetts Bay — The Systems of Statute Law
Constructed and Developed between 1641 and 1679.

An epoch has now been reached in which for thirty-eighl
years the statutes of Massachusetts Bay were those of New
Hampshire. This may be regarded as the second period of
the statutory, as well as political, history of New Hamp-
shire. It was not New Hampshire alone, although a closer
political relation was in every way desirable for the inhab-
itants of the Pascataqua towns, that was benefited by the
union with Massachusetts. This fact is disclosed in the will-
ingness of the general court to admit to the right of suffrage
inhabitants of the New Hampshire towns, otherwise qual-
ified, who were not church members. During this period
New Hampshire was favored with strong leaders who made
themselves felt in the united government. Major Eichard
Waldron, who represented Dover from 1656 until the estab-
lishment of the province, was for seven years speaker of the
house of deputies. John J. Bell, in an address before the
New Hampshire Historical Society some years ago, says of
the men of New Hampshire at this time: "As we look back
... we cannot but be struck with the fact that their leaders
would have been eminent in any community. . . . They not
only have greatly modified the character of New England
town governments, but have contributed no less than Massa-
chusetts herself to make New England's fame and char-
acter."2

During this period there was no obstruction or discourage-
ment of Puritan migration into these frontier towns where
before, for the greater part, the people had been satisfied with
thinking for themselves on questions of theology without man-
ifesting any special disposition to exclude those of different
ecclesiastical notions from their midst. In a few instances
the magistrates of New Hampshire towns employed harsh
measures towards the Quakers, such as were customary in

^Lowell Inst, lecture, pamphlet ed., pp. 8, 10, 11, 30, 39, 42. Peter Oliver's
"Puritan Commonwealth,** Reviewed by J. Wingate Thornton, 1857.
•Proceedings, N. H. His. Soc, vol. 2, p. 191.

32 NEW HAMP8HIBB PROVINCB LAWS.

the Puritan colony.^ It will be borne in mind that the same
laws were in force in the two colonies.

The first code of laws of Massachusetts Bay was adopted
in 1641, at about the time of the union with Portsmouth and
Dover. It is probable that the governor and council had
previously exercised a considerable degree of latitude in de-
claring and enforcing rules of conduct; and when, in 1635, the
deputies took an active part in the government they were
anxious for a definite code. "But," says Palfrey, "it was
several years before this object, diligently pursued by* the
freemen, was accomplished. The magistrates and ministers,
who did not favor it, knew how to interpose embarrassments
and delays."^ Two reasons which infiuenced the magistrates
and some of the elders "not to be very forward in this mat-
ter^' were, first, "such laws would be fittest for us which
should arise pro re nuta upon occasions"; and, secondly, "to
raise up laws by practice and custom had been no transgres-
sion" of the charter. At length the matter was referred to
Eev. John Cotton and Rev. Nathaniel Ward,^ each of whom
prepared and presented a code. The one drafted by John
Cotton was never accepted either by the freemen or by the
general court; but, as it was published in London in 1641
under a false title and frequently reprinted, it has long en-
joyed an undeserved reputation as the Massachusetts Body
of Liberties of 1641.

The code drawn by the Rev. Nathaniel Ward, possibly
amended by the towns or by the general court, was approved
in 1641, and is the foundation of the legislation of Massachu-
setts. A manuscript copy of these laws was found by the
late Francis C. Gray in the Athenaeum library, and first pub-
lished in 1843 in a volume of the Collections of the Massachu-
setts Historical Society.*

No code of laws can be final, and, of course, statutes were
passed each year, until a general revision was found necessary.
A new compilation was made with care, several years being
spent upon the work, and put in print in 1649. This is known
as the Revision of 1649, or the First Printed Book of Laws.^
It was almost certainly a book of about fifty-six pages, con-
taining the Body of Liberties of 1641, very nearly entire, and
such other statutes passed before May, 1649, as were of a

"Dover Records, December 22, 1662. Ancient Superstitions as reflected in
the Early New England Laws, address before the Grafton and Coos Bar
Association by Erastus P. Jewell of Laconia, 1809, manuscript unpublished.
Ferguson, Essays in American History, The Quakers in New England, 1894.

•Palfrey, His. of N. E., vol. 1, p. 442.

■Savage's Winthrop's History of New England, vol. 1, pp. 388, 389.

*Mass. Hist. Soc. Col., First Series, vol. 5. Post, Appendix D, pp. 748-771.

■The first printing press in New England was established at Cambridge in
1638, (N. S. 1639.)

/

/

I

I

SOURCES AND ANTECEDENTS. 33 ,

permanent nature. It was issued in an edition of six hun-
dred copies. It is a singular fact tliat not one copy of this
book is now known to be in existence. A supplement ap-
peared in 1650, referred to in the revision of 1660 as the Sec-
ond Book of the Law; and very likely other supplements were
issued between 1650 and 1660, the date of the next revision.^
The committee, in preparing the revision of 1660, included
some acts not previously passed by the general court; and
presumably it also marks the limitation of many previous acts-
On May 22, 1661, an act was passed providing for the annual
printing of the session laws, as we now term them.

As early as 1664 a movement was under way for another
revision, and at the May session, 1665, the Royal Commis-
sioners presented twenty-six changes which they desired to
have made in the "Book of the General Laws and Liberties
' of 1660.^^ Their principal objects were to have substituted
for all expressions recognizing the supremacy of the com-
monwealth an acknowledgment of the royal authority; to
procure a recognition of the Church of England; and to re-
move the long-standing limitation of citizenship to church
members. An examination of the revision of 1672 shows
that only one or two points were conceded by the general
court, and that the recognition of His Majesty's supremacy
appears in one clause, while the superiority, or at least the
sufficiency, of the local authority was asserted in a score.
The right of strangers to become citizens was nominally con-
ceded, but on conditions that furnisned the minimum of privi-
lege to all but church members. This revision of 1672 was in
no sense a new code, but was published because of the lack
of law books. In it were included such changes as had been
made from time to time.

Another attempt was made to revise the laws after 1672^
and would doubtless have succeeded before the beginning
of the presidency of Joseph Dudley in 1686, had not the magis-
trates and deputies failed to agree as to the part relating to
the general court. The question was whether the charter
provided for a negative in any branch of the general courts
that is, whether it allowed a convention of the whole court,
wherein all the magistrates might be of one opinion, and yet
be overpowered by the numerical superiority of the deputies.
In 1652 it had been voted that when the houses differed in
any case of judication, whether civil or criminal, such case
should be determined by the major part of the whole court.
But this method of forcing an agreement was very disagree-
able to the magistrates who, contending against it in 1672,.
reluctantly yielded the point at last, though their powers
were thereby greatly curtailed. But in 1686 they were more
persistent, and by a prolonged contest prevented the comple-

*The Charlemagne Tower CoUection of Colonial Laws, pp. 62-64.

34 VBW HAMPSHIRE PROVINGB LAWS.

tion of a new edition of the laws, and this, too, even after a
part of the type for the volume had been set.^

In the Plymouth Colony there were compilations of the
laws in manuscript, made in 1636 and 1658. But in 1671
"a complete digest of all the laws then in force'' was per-
fected. This was the first edition of the Plymouth Colony
laws that was printed.^ It is from this edition that the Outt
criminal code of New Hampshire was adapted almost ver-
batim.

The foundation of these early colonial laws was necessarily
in a large measure in the Statutes of the Eealm, which, as
already shown, had grown into a system comprehending a
great variety of subjects and exigencies for which statutory
provisions had been required and enacted.

The charters, also, should be kept in view by those who
investigate the beginnings and progress of law-maki^g in
the colonies. While the limitations upon legislation imposed
by the charters were sometimes ignored or circumvented, it
would be unsafe to assume that they were not regarded and
followed, with reference to most of the purposes and objects of
legislation, as the organic law.

It is also necessary in any attempt to identify the sources
of the law by which the people of the Puritan colonies were
governed, either under positive statutes, current decisions of
their own courts, or unrecorded usages, to take into account
the fact that they recognized the word of God, as declared
in the Holy Scriptures, as a guide, as an authority, as a law
in temporal as well as spiritual affairs. This is certainly
true of the earlier Pilgrim and Puritan immigrants in Ply-
mouth Colony and Massachusetts Bay. The Body of Liber-
ties of the Massachusetts Bay colony and the General Laws
of Plymouth Colony contain provisions and declarations
which were undoubtedly intended to give the magistrates
the right to have recourse to the Scriptures in the adminis-
tration of the judicial department of the colonial govern-
ments. This is, perhaps, more specifically indicated in the
Plymouth laws than in the Body of Liberties of 1641.^ The
relaxation of the strictness of Puritan ideas on this subject,
which the historv of the colonies discloses, is well marked
in their successive revisions and compilations of laws.*

^For the history of the various editions of Mass. laws prior to 1686, see
Whitmore, Colonial Laws of Mass., ed. 1889, pp. 1-28 and 71-117; supplement
to author's notes in the 1890 edition of the same work.

^Plymouth Colony Laws, ed. 1836, pp. viii, ix.

'Body of liiberties, art. 1, p. 752, and art. 65, p. 759, po«f, Appendix to this
volume; Plymouth Colony Laws, edited by William Brigham, 1836, pp. 241,
243, 244.

*From a New Hampshire point of view Dr. Belknap reviews the first union
with Massachusetts in chapters 4, 5, and 6 of his history. In his chapter 3 he
discusses the principles of New England Puritans. The Political Annals
of the American Colonies, by George Chalmers, an Englishman and royal-

SOURCES AND ANTBCBDBNT8. 85

Surrounded, as these colonists were, by tribes of savages,
upon whose continued friendship they could not rely for any
considerable length of time, and with colonization progressing
along the St. Lawrence by people of a nation which was the
hereditary enemy of the mother country, a military spirit and
military habit were developed in New England which charac-
terized the people in successive generations, and which was
reflected in their laws.^

The revolution in England which resulted in the Common-
wealth and Protectorate, 1649-1660, afforded the colonists a
respite from the autocratic policy of the Stuarts. It was an
opportunity which was much more advantageous to them at
this particular stage of the development and application of
their ideas of self-government than any similar period of
non-interference could have been after they had become in-
trenched in their political positions, and had secured the
advantage of largely increased population and resources^ as
well as a military power and prestige not to be despised.

Thi& inauguration and maintenance of a New England con-
federacy, which began in 1643 and continued for more than a
generation, was a source of strength and political education,
and an augury of future governmental possibilities which has
large meaning in the constitutional history of the people of
these colonies.^

In 1679, upon this foreground of colonial history, events,
elsewhere reviewed in these pages, culminated in the dis-

ist, published in 1780, appeared about the same time as the first edition of
the work of Dr. Belknap. The comments of the latter on certain portions
of the Annals are con'tained in the preface to Farnier's edition of Belknap,
p. ix. Prominent among the critics of the New England Puritans are Mr.
Oliver in his Puritan Commonwealth, 1856, elsewhere mentioned, and
Brooks Adams in his Emancipation of Massachusetts, 1887. Mr. Jenness
and Mr. Tuttle, whose works are frequently cited in this volume, may be
regarded as, in a sense, the principal representatives of the anti-Puritan
school of historians, who have treated the subject in modern times with par-
ticular reference to the relations of colonial New Hampshire to the dominant
Puritan element in the early New England govemmeoits.

'Potter, Military History of N. H., part 1; the Editor's Historical and Bibli-
ographical Notes on the Mil. His. of N. H. in The History of the Seventeenth
Regiment, ch. 28; id., pamphlet; Penhallow, Hist, of Indian Wars in New
England, in N. H. His. Soc. Col., vol. 1, pp. 14-133; Mather, Relations of
Troubles Which Have Happened in New England Because of Indians, 1614-
1675; Farmer's Belknap's Hist, of New Hamp., chaps. 5, 10, 12, 14, 19, 20, and
22; Pike's Journal, 3 Colleotons of N. H. Historical Society, 40; Parkman's
histories, especially Pion-eers of New France, Frontenac and New France
under Louis XIV, Half C (•ntu^^ of Conflict, and Montcalm and Wolfe; Fiske,
New France and New England, 1902; History of the Indian Wars in New
England to 1677, by William Hubbard, ed. by Rev. Samuel G. Drake, 1865.

'Doyle, The Eng. Col. in Am., vol. 3, pp. 229-237; Palfrey, Hist, of New Eng-

, by

D. Stone, published in Carson's History of the Celebration of Hundredth An-
niversary of the Promulgation of the Constitution of the U. S., vol. 2, pp.
439-503. * * Lf

36 NEW HAMPSHIRE PROVINCE LAWS.

association of the New Hampshire towns from the Massa-
chusetts Bay colony, and their establishment as a royal prov-
ince. The causes which led to this result have been analyzed
by the historians of New Hampshire and New England, and
are clearly defined in these authorities. The beginnings of
New Hampshire as a separate province were accompanied by
grants of powers of legislation, and a full investiture with
the responsibilities of a separate government, subject to the
regulative and restrictive control of the mother country.^

Tedb Transition Period.

The royal edict in 1679, separating the New Hampshire
towns from the union with Massachusetts, which had contin-
ued thirty-eight years, marked the beginning of the end of
an era. The New England commonwealths, which had been
developed at this time to such proportions and on sjuch lines
of political progress as the student of colonial history observes
at this period, were attracting the jealous attention Df the
Stuart ministries on account of their manifest tendencies
towards independence. In respect to their municipal rights
and privileges they were so strongly intrenched in the New
England town system that they were there practicably im-
pregnable. There was not the same security, however, for
the federalized governments which had been developed on
the basis of charters granted by the crown, or crown corpo-
rations created for the purpose of colonizing America.

Various causes had been in operation to convince the home
government of the necessity for radical measures to counter-
act or control that policy of home rule which was manifest in
the Puritan colonies, and which presaged such an ultimate
assertion of colonial rights as might be destructive of the
sovereignty of the mother country.

As the erection of a province government for New Hamp-
shire in 1679 marks the beginning of a transition period, so
the grant of a new charter to Massachusetts Bay and Ply-
mouth Colony, united as Massachusetts in 16^1, and the-
restoration of a province government to New Hampshire,
one of the same group of events, d eliminate the later boundary
of this period. The establishment of the province of New
Hampshire in 1679, the abrogation of the charter of Massa-
chusetts Bav in 1684, the abolition of colonial assemblies in
five New England colonies, and the temporary establishment
of the Dominion of New England in the three years of 1686-7,
1687-8, and 1688-9 are the most conspicuous milestones in the^

*This epoch in New Hampshire has been treated, among others, by Mr.
Doyle and Mr. Tuttle, and their chapters on the causes which operated iik
the establishment of a sepnrn^p r»rovince government are given in fuU in»
this volume, Appendix E, pp. 770-785.

SOURCES AND ANTBCKDENT8. 37

final progress of the autocratic policy of the Stuart govern-
ments towards the New England colonies to an extreme that
could be reached but not maintained.

With the abdication of James the Second in 1688 the pre-
posterous governmental scheme that had been erected for the
people of New England, and against the protests of the great
majority of them, collapsed at once upon the removal of the
exterior sui)ports upon which its existence depended.

There was in these years a strong and determined party in
New Hampshire acting in opposition to Robert Tufton Mason,
and his rovalist and anti-Puritan adherents. Mason was the
able, resourceful, and indefatigable successor in the legal con-
trol and active management of the property and rights of the
first proprietor.

In Massachusetts a similar party had maintained a steady
opposition to the local loyalist leaders, among whom Edward
Randolph was the most consistent, the most active, and the
most dangerous.^

Mr.* Doyle has pointedly characterized the policy of sep-
arating the New Hampshire towns from Massachusetts, and
reorganizing them into a feeble province on the most exposed
frontier of New England. "The settlers were exasperated^ and
with justice, at their severance from Massachusetts. They
may have had no special sympathy with that colony. But
no position could be more wretched than that of a little, iso-
lated, and independent settlement, in the middle of a line of
frontier constantly threatened by savages. The very nature
of the attack made matters worse. If the danger had been
that of invasion and permanent occupation, then the interests
of Massachusetts and New Hampshire would have been iden-
tical, and the weaker colony would have been sure of help.
But the war which France was waging was not, as yet at
least, a war of conquest. It was a war of partial and local
destruction. The more efficient was the defense along the
frontier of Massachusetts, the more certain was it that the
tide of invasion would hurl itself against the one undefended
district. We may well believe that the petition for a system
of joint defense under a general governor came from those
inhabitants of New Hampshire who were, from past associ-
ation, hostile to Massachusetts, and yet felt the helplessness
of their own colony, isolated under a proprietor."^

The project of reunion was thwarted by the interested
efforts of Mr. Mason. His motives and purpose were personal.
The efforts of Randolph, his coadjutor, though induced, per-
haps, by different considerations, were directed to the same

*Tiit tie's Historical Papers; Andros Papers, 3 vols., published by the
Prince Society.

"Doyle, English Ck)lonies in America, vol. 3, p. 329; id., post, Appendix E,
II, p. 780.

88 NBW HAMPSHIRB PROVINpB LAWS.

end. Both based their appeals to the crown upon the urgent
necessity of curtailing the ominously increasing political
power of Massachusetts Bay.

The Earl of Bellomont, in his correspondence with the
Lords Commissioners of Trade and Plantations a few years
later, thus describes the policy of Mason and the coterie that
had purchased the Masonian title after the death of Kobert
Tufton Mason in 1688:

"And for a conclusion I humbly and earnestly recommend
the vacating of Colonel Allen's pretension to New Hamp-
shire, and all other claim derived from Mason which . . . are
an abomination and a mystery of iniquity.''^

The reaction from the extreme measures which took form
and effect in the commission, instructions^ and administra-
tion of Governor Andros failed to restore the New England
colonies to the independent status to which they had attained
prior to 1679. Massachusetts Bay, Plymouth, and Maine^
united as Massachusetts by the new charter of 1691, regained
the right of representation for the towns in the general court,
a limited law-making power, and the autonomy of the town»
as the primary units of government. But they were required
to submit to the provision in the new charter for the appoint-
ment of a governor by the crown, instead of being suffered to
elect their own chief magistrate according to the custom
which had been previously established. Several other points
in the readjustment of the relations of the home govern-
ment with the government of the colonies were important
and are familiar to those who have reviewed the course of
events in this period. Not the least noteworthy of these pro-
visions were the regulation of the right of appeal from the
judgments of the colonial courts, and the explicit require-
ments relative to the transmission of colonial laws for review
by the privy council.

The settlement of this new system of colonial administra-
tion, which was introduced in New Hampshire in 1679 and
restored here in 1692, and in which Massachusetts finally ac-
quiesced in 1691-92, was very nearly in point of time midway
between the immigration of the Pilgrims in 1620 and the com-
mencement of the War for Independence in 1775. An era
in colonial affairs was concluded in 1692. Then a new book
was opened in the account between Britain and her Amer-
ican plantations. The specifications on the part of New
Hampshire to cover the first ten years of the last half of the
colonial period are deducible from the records and collateral
authorities which relate to the administration of government
in the province under the commissions of Samuel Allen and

*2 Province Papers, 355; id,, Palfrey, 'History of New England, vol. 4, p. 217»

80URCKS AND ANTBGBDENT8. 89

the Earl of Bellomont. The final summary was drawn by
Thomas Jefferson in 1776.^

In this province the enquiry as to whether William and
Mary, their ministers and parliaments, had fairly met the obli-
gations that were imposed .upon them„ as the responsible
heads of a constitutional monarchy, in the then existing rela-
tions with their colonies, brings in issue the character and fit-
ness of the royal governors and their deputies and lieutenants,
the sufficiency of the measures employed and means provided
for the protection and defense of these outposts of English
enterprise and racial extension, the consideration that was
accorded the province laws submitted for confirmation or
rejection, the bestowal of the governorship uppn Mr. Allen
and Mr. Usher, under circumstances in which they stood as
contestants with the people in respect to ownership of the
principal part of the. lands lying within the boundaries of the
province, and the restriction of the trade of the province to
the home market in England or to designated provinces under
the provisions of the navigation acts.^

It is not difficult to trace serious causes of disaffection ex-
isting in the first years (1692-1702) of the restored province
government, and persistent to the culmination of the aggre-
gate of discontent in the revolution of 1775.

CJoLONiAL Supervision and Administration in the

Home Government.

The entire management of colonial affairs until after the
revolution of 1688 was in the control of the king and the privy
council. As early as 1636,® however, there seems to have
been a committee or board variously referred to as Commis-
sioners of Plantations, Lords Commissioners of Plantations*
or Committee for Foreign Plantations,^ whose especial duty it
was to give counsel in colonial matters. A special Commis-
sion for Plantations was appointed on November 24, 1643, by
the Long Parliament®; and again under date of March 2,
1650, appears the following:

"Order of the Council of State. The whole Council, or any «
five of them to be appointed a Committee for Trade and Plan-
tations.^'^ Soon after the restoration, December 1, 1660^

^Poore, Charters and Constitutions, ed. 1878, part 1, pp. 3-5; Hill, Liberty
Documents, 1901, pp. 183-187.

'A compilation of the acts of parliament which related to the government
and affairs of the American colonies, with appropriate comments, is a desid-
eratum in the literature of the jurisprudence of the colonial period.

■Calendar of State Papers, (Colonial), 1574-1674, § 176.

Vd., § 193.

Ud., § 338.

•Calendar of State Papers (Colonial), 1574-1660, p. 324.

Vd., p. 335.

40 NEW HAMPSHIRE PROVINCB LAWS.

Charles the Second appointed a Council for Foreign Planta-
tions, composed of thirty-five members from the privy council,
the nobility, gentry, and merchants.^ The duties of this
council, like those of its predecessors, were only advisory;
but they were instructed to inform themselves of the state
of the plantations and their governments, to write to all the
governors and patentees, requiring a report of their afifairs,
of the nature of the laws, number of men, fortifications, etc.
"To adopt means for rendering those ddminions and England
mutually helpful. ... To inquire into the government of the
colonies of foreign states, and apply what is good and prac-
ticable to the English plantations. To call experienced mer-
chants, planters, seamen, etc., to their assistance." It was
also their duty to provide orthodox ministers for the planta-
tions, and to consider how the natives and slaves might be
made ready for baptism in the Christian faith.^ "The pro-
ceedings of this commission are fully recorded, and reveal an
astonishing activity in colonial questions, indicating the new
place which these affairs occupied in English policy."^

Early in 1675* Charles the Second dissolved the Council of
Trade and Plantations, doubtless another name for the Coun-
cil for Foreign Plantations; and on March 12, 1675, all busi-
ness relating to the colonies was committed to a committee
of the privy council. Five members were to constitute a
quorum. They were to hold weekly meetings and report
from time to time to the king.** This committee exercised
about the same authority as the Council of thirty-five had
done; but in 1696, after the House of Commons had come to
take a more prominent part in industrial and colonial ques-
tions, a Board of Trade was appointed to promote trade and
to inspect and improve the plantations.® This board, after
nearly a century, developed into the Colonial Department.''

The Cutt Code, 1680, 1681.

No better evidence exists of the inapplicability and inad-
equacy of the laws of England in their entirety, when em-
ployed without modification in practical experiments in gov-

^Calendar of State Papers (Colonial), 1661-1668, p. viii.

Ud., 1574-1660, pp. 492, 493.

"Woodward, The Expansion of the British Empire, 1899, p. 138.

^Calendar of State Papers (Colonial), 1675-1676, § 429.

»7d., §§ 460-464.

•Doyle, English Colonies in America, vol. 3, p. 323.

^In the notes which accompany the documents and acts contained in the
principal text of this work, and in the Appendix, it is quite possible that
the terms descriptive of these several boards, commissions, and committees
may have been inaccurately applied as regards the time of one or more of
those organizations. Such an occasional anachronism will hardly be mis-
leading, as the date will indicate correctly the particular official body
to which allusion is made.

SOURCBS AND ANTECEDENTS. 41

•

ernment in the ncnv world, than the unyielding insistence of
the colonial legislatures in the exercise of the law-making
power for their own constituencies. The president, council,
and deputies, constituting the general assembly of the prov-
ince of New Hampshire, immediately upon their assumption of
oflBice, addressed themselves to this task of providing the peo-
ple of the province with a body of laws adapted to local neces-
sities, and at length produced what is commonly known as the
"Cutt Code." Its provisions were necessarily drawn with ref-
erence to the experience of the members of the general assem-
bly in dealing with colonial conditions in the period that had
intervened since the New Hampshire towns, fifty years pre-
viously, had built up local governments for themselves. Un-
doubtedly these legislators had in solicitous consideration,
also, in devising and adapting the provisions of their laws, the
Masonian claim and all the possibilities that were involved in
its reassertion against the property and people of New Hamp-
shire.

In the past the opinion seems to have been quite gener-
ally entertained that the body of laws known as the "Cutt
C5ode" was taken in its entirety, or for the gi*eater part, from
the laws of Massachusetts Bay colony. Reference is made
in notes which appear later in this volume {posty p. 10) to the
statement of Mr. A. H. Hoyt in his "Notes, Historical and
Bibliographical, on the Laws of New Hampshire," to the
effect that that portion of the Cutt laws which relates to
crimes is copied in substance from the laws of Plymouth
Colony and not from those of Massachusetts Bay. This asser-
tion is verified by a comparison of these two series of laws.
The sources of the civil part of the "Cutt Code" are not so
certainly ascertainable. Several sections were undoubtedly
transcribed from the contemporaneously existing laws of
Massachusetts Bay. Other articles are quite dissimilar from
the corresponding ones in the Bay colony laws, while others
still which appear in the "Cutt Code" are not found in the
laws for that period of either Massachusetts or Plymouth.

It appears in the narrative of proceedings in the province
of New Hampshire which was transmitted to the home gov-
ernment in 1681 (17 State Papers, 555-59, abstract, posty p.
786), that the writer made this assertion: "They [the assem-
bly in the time of Cutt] have made a law to confirm the laws
of Massachusetts colonv and the title to lands derived from
that authoritv."

The basis for this statement is doubtless to be found in the
"Cutt Code,'- article [1], post, p. 23, and article [14], post, p;
28. It will be observed that the article relating to the con-
firmation of town grants, etc., had peculiar reference to New
Hampshire affairs, and that it was well calculated to excite
the most serious antagonism of the representatives of the

42 NBW HAMPSHIRE PBOVIKGB LAWS.

•

Masonian interests. A similar provision reappears in stat-
utes enacted in the time of Partridge, chapter 19, pp. 693,
695, 696, post; notes relative to same acts, posty pp. 649, 650.

The provision for the continuance of the pre-existing laws,
so far as they were necessary to provide for exigencies that
might not have been contemplated in the enactments of the
new code, was not an extraordinary or unusual act of colonial
legislation. Orders issued in the time of the presidency of
Joseph Dudley and of the governorship of Sir Edmund An-
dros, posty p. 249, are directed apparently to the same purpose.

Keferring to this body of laws known as the "Cutt Code,''
Secretary Chamberlain, in a letter to Mr. Blathwayt of date
May 14, 1681, remarks as follows: "The whole system in gen-
eral being collected mostly out of the Massachusetts laws.''

Although this statement is somewhat qualified, it is suf-
ficiently broad to have been the possible origin of the opin-
ion that was long current as to the origin of this particular
series of New Hampshire laws. In the same communication
Mr. Chamberlain continues: "Surely it could not well stand
with the mind and pleasure of His Majesty that we here
should cast off obedience to their [Massachusetts Bay's]
jurisdiction and voluntarily submit to, and yoke ourselves
so inseperably to their laws."

No further remarks need be made on the subject in this
connection, except to call attention to the fact that the laws
of these three colonies, which were in operation at the time
when the first body of New Hampshire laws had been
enacted, are now conveniently accessible; and the student
of comparative jurisprudence who is desirous of pursuing the
subject further will find the material ample for his inves-
tigations.^

The events that led up to the establishment of the province
government, and the interests that were active in the accom-
plishment of this result, are prominent features of the his-
torical setting in which the first province government and
the first body of province laws are placed.^

The importance of this epoch in the statutory history of
the province has rendered recourse to the contemporary au-
thorities, and the more recent critical treatment of the sub-
ject, appropriate to the present work in connection with the
presentation of this Code, and, indeed, indisp'ensable.

The auxiliary articles which are found in the appendix,
and the notes which accompany the principal text of the

*See General Laws and Liberties of Massachusetts, 1672, in Whitmore*s
Colonial Laws, ed. 1887; General Laws and Liberties of New Plymouth, 1671,
in Brigham*s Plymouth Colony Laws, 1836; Laws of Connecticut, Reprint of
the Original Edition of 1673, with Prefatory Note, by G. Brinley, Hartford,
privately printed, 1865; Cutt Code, this volume, post, pp. 9-47.

*Doyle, English Colonies in America, vol. 3, p. 294.

SOURCES AND ANTECEDENTS. 43

laws of the time of the C5utt and Waldron administration, will
afford the reader immediate access to the approved author-
ities, or citation to them.^

The Oranfield C5ode and the Essays of the Lieutenant-
Governor AND His CJouncil in Legislation without

THE Ck)-OPERATION OF THE HOUSE OF EePRESENTATIVES.

This period was brief, but replete in important events. It
marks a striking transition from the conservative policy of
the Cutt and Waldron administration to the offensive and
arrogant misgovernment of Cranfield, Barefoote, and Mason.
As regards the laws of the province it was apparently as-
sumed to be incumbent on the general assembly to formu-
late and adopt a new code. Such a body of laws was
speedily adopted by the two new houses of the assembly, and
' approved by the lieutenant-governor. It now transpires from
an inspection of the contemporary correspondence of himself
and his secretary with the home government that both of these
oflScials were intriguing for the disallowance of these laws, to
the enactment of which they had ostensibly given cordial ap-
probation. Early in this administration the lieutenant-gov-
ernor became pecuniarily interested (and it is not impossible
that he was a partner from the beginning) in the Masonian
claim, and a co-operating agent in its enforcement against the
people over whom he was the appointed chief magistrate, and
over whose interests he should have been a disinterested and
impartial guardian. His attitude, however, soon became
notorious. His cynical frankness left no room ifor doubt as
to his relations with Mason. His assembly broke with him
before the end of the first year, and refused to grant him any
revenues or even to assemble for any purpose, either at his
request or upon his command. His conduct disclosed no
tact, no disinterested purpose, and no regard for the propri-
eties of his position. A selfish and mercenary spirit was the
principal characteristic of his policy. The body of laws
which was enacted in the first year of his administration is
commonly known as the "Cranfield Code." Upon the refusal
of the house of representatives to co-operate with him in legis-
lation for any purpose (except in a single instance, upon the
urgent initiative of the home government, when the passage
of an act against pirates was secured) he construed his com-
mission as giving himself and his council authority to legis-
late without the concurrence of a house of representatives.
The events of this administration have proven unusually at-
tractive to the historians of the colonial period, and their
treatment of this part of it is voluminous and exhaustive.
The acts of the time of Cranfield and his deputy, Walter

'Principal text of this volume, post, pp. 1-47; Appendix E, post, pp. 770-785.

44 KEW HAiMPSHIRB PROVINCE LAWS.

Barefoote, are given in full in the text. An unusual number
of duplicates, or different renditions, of the, ^^Cranfield Code"
have been preserved in manuscript through the industry of
the lieutenant-governor and his secretary in making their
contemporary transmissions, according to the requirements
of the commission, to the home government. These have
been presented in such manner as to identify each copy, as
far as practicable, in point of time and in its proper relation
to contemporary events. Other papers which serve to add
to a correct understanding of this particular chapter of the
province legislation are presented in the appendix.^

Original manuscript copies of what we now describe as
the "Cutt Code" and the "Cranfield Code" have survived from
the time of their enactment in the archives of the province
and state, of New Hampshire. There is evidence, however,
that the most accomplished jurists of the state a hundred
years ago were not aware of their existence. In a collection
of extracts from the writings of Chief Justice Jeremiah
Smith, edited by his son, Jeremiah Smith, now a professor in
the Harvard Law School, and published in 1879, in the vol-
ume known as Smith's Decisions, the editor remarks as fol-
lows in a marginal note:

"In a . . . charge to the grand jury. Judge Smith ex-
pressly stated that he had never been able to find the codes
of law enacted by the New Hampshire Assembly in 1679-80
and in 1682."^

As stated in the notes accompanying the acts of the time
of Cutt and Cranfield, no definite evidence has been dis-
covered in the English archives to determine whether the
laws known as the "Cutt Code" and the "Cranfield Code"
were formally disallowed by the king in council. That ques-
tion still remains unsettled.

It is not open to question, however, that the laws enacted
by the general assembly by authority of the Outt commis-
sion were to remain in force until the king's pleasure in re-
spect to them might be announced, after their submission to
and examination in the privy council. If, therefore, it is not
shown that such laws were changed or disallowed by the king
in council, it must be admitted, by virtue of the royal edict
declared in that commission, that they were to be considered
as remaining in operation until the king's pleasure should be
made known to the contrary. (Cutt commission, post^ p. 6.)

^Principal text of this volume, postj pp. 48-92; Appendix F, post, pp. 788-809.

^Decisions of the Superior and Supreme Courts of New Hampshire, from
1802-1809, and from 1813-1816, Selected from the Manuscript Reports of the
Late Jeremiah Smith, Chief Justice of Those Courts, with Extracts from
Judge Smith's Manuscript Treatise on Probate Law, and. from His Other
Legal Manuscripts, p. 529, note 2. See also statement by Salma Hale, Judi-
cial History of New Hampshire before the Revolution, Monthly Law Report-
er, October, 1855; Id., reprint, 3 Grafton and Coos Bar Association Proceed-
ings, 64.

SOURCBS AND ANTECEDENTS. 45

The next question will be as to their repeal or amendment by
subsequent legislation in the general assembly of the prov-
ince; and, finally, in the absence of sufficient evidence of such
repeal, or any amendment, a question would arise involving
the presumption of repeal by lapse of time and disuse. The
legal effect of an apparently general disregard of these partic-
ular laws in the time of the later administrations is pre-
. sented for consideration. There is evidence that they had, at
a date not long subsequent to that of their passage, become
obsolete, if, indeed, they had not been generally and correctly
supposed by contemjyoraries to have been positively disal-
lowed by the king, the record of the fact being nftw lost or
buried in the ancient archives of state. (Note preliminary
to the laws enacted under the commission of Samuel Allen,
post, p. 518.) It may be remarked that the theory of implied
repeal of statutes by disuse does not receive much encour-
agement in the authorities. (Dwarris on Statutes, ed. 1871,
p. 154.) Under the Cranfield commission {post, p. 50), while
the language to the point is not quite as explicit as it is in
the Cutt commission, it is evidently the expressed intention
that the laws passed by tjae lieutenant-governor, with the
advice and consent of the council and assembly, were to con-
tinue until disallowed by the king in council. Pending the
consideration of the laws passed in the first part of the gov-
ernment of Lieutenant-Governor Cranfield, and by him trans-
mitted to the home government, it would seem that the
opinion which he entertained was contrary to the one above
ventured. He plainly suggested that the laws which he had
passed ought to be disallowed. He says, "Meantime I gov-
ern them by the laws of England." {Post, p. 58.) The impli-
cation here seems to be that he did not regard the acts, which
he himself had approved and sealed, as valid and operative
until approved by the king. In the instructions accompany-
ing the Andros commission, 1686, {post, p. 157) it is stated
that "all laws, statutes, and ordinances within our territory
and dominion of New England shall continue and be in full
force and vigor, so far forth as they do not in anywise contra-
dict, impeach, or derogate from our commission, orders, and
instructions, until such time as, with the advice and consent
of the council, you [the governor] shall pass other laws for
the good government of our said territory and dominion,
which you are to do with all convenient speed." This is
assuredly evidence of a recognition of the laws previously
enacted in the colonial legislatures of New England as still
valid. The commission and instructions to Governor Andros
have always been regarded, from the New England point of
view, as an arbitrary and far-reaching encroachment upon the
rights of local self-government established here by the colo-
nists, and which they had successfully maintained from the

46 NEW HAMPSHIRE PROVINCE LAWS.

period of the first settlements down to 1679. Yet the con-
cession in the instructions allowing the "laws to continue in
force till others should be made," and the article in the com-
mission which directed that the governor and council should
enact "laws and statutes and ordinances ... as near as con-
veniently may be agreeable to the laws, statutes, and ordi-
nances of this our Kingdom of England," are certainly of a
conservative character, and, considered apart from other and
admittedly obnoxious provisions of the Andros commissions,
they do not sustain the extreme arguments that have been ad-
vanced to the effect that the laws in force in the time of the
inauguration of the Andros government were summarily re-
peal^ by royal edict, or by any act of the legislative council
of the Andros government. Article 10 of the Andros instruc-
tions and Article 14 of the Cutt Code, it will be observed, are
very similar in terms and legal effect.

The Laws of England and the Compilations in Use in
THE First Years of the Province Government, 1679-
1686.

It appears from the New Hampshire correspondence pre-
served in the English archives that a copy of some edition of
the statutes of England was in the custody of the province
government as early as May 14, 1681, when Mr. Secretary
Chamberlain employs these words in a letter to the Lords of
Trade and Plantations: "the King having sent a great Vol-
ume of Laws copiously and accurately done to their hands."
Mr. Chamberlain's argument was that, inasmuch as this
book of laws was available to the officials of the province,
the formulation and enactment of other and local laws for
the province was entirely unnecessary. Lieutenant-Gover-
nor Cranfield, in a letter of October 22, 1682, referring to the
administration of the oaths of office to his councillors, says
that "wanting the Statute Booke could not Subscribe ye
Test, which was don th^ next meeting." The inference from
this statement must be that a "Booke" was produced on the
occasion which is referred to as the "next meeting." It will
doubtless be found advantageous to identify the particular
edition or editions of the English statutes employed by those
who had to do with the compilation of the earliest codes of
New Hampshire province law, or which were certainly
.accessible to them. Among the collections of statutes which
had been published in the years recently prior to the estab-
lishment of the Cutt presidency in 1679, were the two de-
scribed as follows:

(1) A collection of all the statutes now in use by F. Pulton
. . . with a continuation of the statutes ... of Charles the
First . . . and . . . Charles the Second ... to the last ad-

SOUKCKS AND ANTECEDENTS. 47

journment of parliament April the 11 th, 1670. As also, a
necessary table or Kalendar to the whole work ... by P.
Manby, B. L., pp. 1537.

Assigns of J. Bell and O. Barker; London, 1670, fol.

(British jNLuseum Catalogue, 506, n. 1.)^

(2) The Statutes at Large in paragraphs from Magna
Charta until this time (27 Charles II) carefully examined by
the Rolls of Parliament with the titles of such statutes as
are expired, repealed, altered or out of use. Together with
the heads of Pulton's or RastalPs abridgments on the margin,
and the addition of above five hundred new references from
other books of law and a new table. By J. Keble, B. L., pp.
1472.

Assigns of J. Bell and C. Barker; London, 1676, fol.

(British Museum Catalogue, p. 506, n. 2.)^

The special importance of these two editions is that the
first seems to have been in actual custody and use by the Cutt
administration in this province (1 Province Papers, 383); and
the other was the edition used in the home government in the
preparation of the commission and instructions to Lieutenant-
Governor Cranfield. By comparing the above citations,
p. 383, lines 5, 6, and 7, with Pulton's Collection, edited
by Manby, 1670, copy in the British Museum, it will be
noted that in that collection (i. e., Manby's Pulton) the
marginal citation or annotations to chapt. 29, p. 4, where
the text of the act of 9 Henry III is printed, afford the proof,
due allowance being made for wrong punctuation and other
clerical errors in the American manuscript and printed copy
of the Cutt code, that the writer of the paragraphs appearing
in the last part of page 382 and at the top of page 383, 1 Prov-
ince Papers, must have had the text of Manby's Pulton before
him. It was undoubtedly Manby's Pulton (ed. 1670) that Mr.
Chamberlain referred to as the *^Great Volume" of the laws
of England that was in the possession of the Outt government
in the province of New Hampshire, 1679 to 1681. (Letter,
Richard Chamberlain to Wm. Blathwayt, May 14, 1681.)
This is the earliest printed book that can be regarded, on
our present information, as having ever belonged to a state
library of the province of New Hampshire. Passing on in
the text of 1 Province Papers, it will be observed on page
444, at a point which appears to be at the conclusion of the
text of Lt. Gov. Cranfield's instructions, prepared in England,
of course, by the officials of the home government, that quo-
tation is made from the act of 16 Charles I, Statute Book, p.
1108, section 5; '^Be it likewise declared, etc." There is con-
clusive internal evidence that Keble's edition, 1676 (and not

*See also this volume, post. Appendix A, II, pp. 726-736.

48 NEW HAMPSHIRB PROVIKCK LAWS.

Manby's Pulton), was the one from which this extract was
made from the ''Statute Book" by the officers of the colonial
department of the home government in England in the
spring of 1682. The language quoted appears on p. 1108 of
Keble's ed., 1676. Furthermore, the citations to ch. 29, 9
Henry III, Keble's ed., p. 4 (1676), are more numerous than the
corresponding citations to the same act in Manby's Pulton
(1670), p. 4. This fact also identifies the edition of 1676 as
the one from which quotation was made for the text found on
p. 444, 1 Prov. Papers. In addition to the foregoing evidence
of identification is the fact that the citation, 16 Charles I, is
an error which appears in and is peculiar to Keble's ed. It
should have been named as 17 Charles I. As the error which
appears in Keble's edition, 1676, is repeated in the tran-
scripts, 1 Prov. Papers, 444, ai^ additional proof is afforded
that the home government, in 1682, in its Cranfield corre-
spondence, was using Keble's ed. of the Statutes at Large,
while the same considerations also tend directly to the con-
clusion that the Cutt government, in the formulation of the
Cutt code, and Secretary Chamberlain in his correspondence
in 1680, were making use of the Manby's Pulton edition of the
Statutes, 1670, and that this edition was the qne in posses-
sion of the province government in the period of 1679 to 1681.

It is presumable, moreover, that the same volume continued
to be the most important printed book in the province library,
if not the only one, for an indefinite time in that part of the
colonial period, unless, as is quite possible, a copy of Keble's
edition was added by transmission from England in 1682,
accompanying the instructions to Lieutenant-Governor Cran-
field.

If, as indicated by the title lines, post, p. 57, a compilation
containing the passage as quoted from the Statute Book,
p. 1108, section 5, was forwarded with the instructions to
Lieutenant-Governor Cranfield, that volume was undoubt-
edly a copy of Keble's edition of 1676. While it seems that
there is little room for mistake in these conclusions, it is not
disputable that a question may be raised as to why the ed[i-
tion of 1676 should not have been the one in use in our prov-
ince in 1679 and 1680 instead of the edition of 1670; and why a
later edition than that of 1676 should not have been in evi-
dence in the preparation of the instructions to Cranfield in
1682. These are suggestive questions, but not of superior
importance unless the answers should impair the validity ot
our conclusions as to the identity of the editions used re-
spectively by the Cutt government in 1679 and 1680, and by
the officers of the home government in 1682, for the purpose
already considered in this monograph. There may have
been at that time a longer period actually intervening be-

80URGBS AND ANTEGBDBNT8. 49

tween the date assigned to the book on the title page and the
date of its actual issuance from the hands of the publishers
than would be expected in bringing out similar works in
these days. These considerations, liowever, may be post-
poned at this time for further historical investigation, as they
are not essential to the inquiries as to which edition of the
statutes of England was the subject of reference on pp. 383
and 444, Province Papers, vol. 1.

It is to be regretted that the identical copies of these com-
pilations, Manby's edition of 1670 and Keble's edition of
1676, could not have been preserved in the archives of the
province, and thence transmitted to the present library of the
state. ^

The Dominion op New England. The Period of Law-
making BY A Council Appointed by the Grown, 1686-
1689.

The remarkable experience of the people of New Hamp-
shire in the four years of the co-operative administration of
Cranfield and Mason served to reconcile them to almost any
prospective or possible change of government. The colonies
of New Plymouth, Massachusetts Bay, Connecticut, and
Rhode Island might well regard with dismay the prospect of
an extension of such a system and such methods over a con-
solidated New England as Lieutenant-Governor Cranfield
had represented and exploited in New Hampshire. In the
events which followed the inauguration of the government
of the Dominion of New England, under the preliminary
administration of the Dudley presidency and council, and the
permanent administration of Sir Edmund Andros, the peo-
ple of New Hampshire encountered and experienced condi-
tions in favorable contrast with those which obtained from
1682-1686; while the people of the other colonies had the
nearer perspective which their own experience in colonial self-
government had afforded. The relations of this province to
the government of New England are necessarily involved
with those of the other colonies, and are not easily differen-
tiated from the complex politics of that important transi-
tional period. The record is extended in that part of the text
of this work which is devoted to the Dominion of New Eng-
land, with a view to a complete presentation of the legisla-
tion of the period, to be read in connection with the commis-
sions and instructions issued to those to whom the govern-
ment was committed. Original documents are included in
this collection which have not heretofore appeared in Amer-

*An original copy of Keble's edition has been recently procured for the
state library at Concord, and efforts are being made to add an original copy
of Manby's edition of 1670.

50 HEW HAMPSHIRE PROVIKGB LAWS.

lean publications.^ The material for this part of the work
has been sought in the archives at Washington, Philadelphia,
and London,^ and in all the states which, in their early colo-
nial status, were included in the Dominion of New England.

New Hampshire without a Pbovincb Goveenment, 1689-

1690.

This brief but historically interesting interval is specially
noteworthy in one particular, if in no others. It illustrates
the adaptability of the New Hampshire system of town gov-
ernment, as then developed, in meeting the strain of serious
emergencies in government. At this time a revolution was
in progress in the mother country, and another in the Domin-
ion of New England. All external governmental functions
had ceased to be operative in relation to these towns.
Years of experience in the exercise of local powers and meth-
ods, however, had made the people of these towns intelligent
and self-reliant masters both of practical and theoretical
civics. An interesting product of this exigency was the plan
of confederation which was formulated by the leading men
of the towns, but which failed through the refusal of a con-
trolling party in the town of Hampton to ratify it. The in-
strument indicates the views of representative men of the
four towns on various practical questions in statecraft. The
document is a comparatively recent discovery. The notes of
Judge Bell and the monograph of Mr. Tuttle, which consti-
tute Appendix I, reflect the results of careful, critical, and
competent investigation of this unique but somewhat obscure
period in the political history of the province, the article of
Mr. Tuttle being directed more specifically to the form of
government proposed in the articles of confederation, and
to the history of the ancient document which, it appears, had
been preserved for some two hundred years in the papers
of his family.*

The Period of the Second Union of the New Hampshire
Towns with Massachusetts Bay, 1690-1692.

Without the contribution which the Massachusetts
archives afford for the statutory history of the province of
New Hampshire, a hiatus of more than two years would have
existed in the otherwise continuous record of legislative en-
actments actually operative here under successive govern-
ments. The problem of selection, from a large mass of rec-
ords, of that which was pertinent to a collection of statutes,
resolves, and orders for this province was one of no little

^Post, pp. 93, 146, 155, 644, 830, 859.

'Principal text of this volume, post, pp. 98-258; Appendix H, post, pp. 829-842.

^Principal text of this volume, post, pp. 259-266; Appendix I, post, pp. 643-847.

SOURCES AND ANTBGBDBNT8. 51

difficulty. The rules of inclusion and exclusion adopted and
applied in the compilation are stated and explained in the
notes which precede the abstracts for the so-called inter-
charter period. The necessity for the presentation of exten-
sive transcripts from these records is emphasized by the fact
that the Whitmore compilations of Massachusetts Bay stat-
* utes, which were published in 1887 and 1889, contained
nothing later than 1684, the year of the abrogation of the
first Massachusetts Bay charter, while the Goodell series of
the Province Laws of Massachusetts begins with the acts of
the general court upon the inauguration of a government
in 1692, which included both Massachusetts Bay and Ply-
mouth Colony under the second charter. It will be observed
that the entire period between the termination of the Andros
administration in April, 1689, and the beginning of that of
Sir William Phipps in 1692, is included in this work.^

The legislation of the general court of Massachusetts Bay
in the period which intervened between the termination of
the Andros government in the spring of 1689 and the begin-
ning of that inaugurated in the spring of 1692, under the
charter of 1691, was somewhat tentative, and none of the
acts, resolves, or orders of those three inter charter years are
to be found in the form of engrossed acts in the archives of
the commonwealth.

The Province Government of New Hampshire Revived
AND TbE Legislative Assembly Restored, 1692.

The extended notes relating to the governments adminis-
tered from 1692 to 1699 under the commission of Samuel
Allen, and from 1699 to 1702 under the commission of Ihe
Earl of Bellomont, and the statutes enacted by the general
assembly in that period, render superfluous a further elabo-
ration of the same subject in this introductory statement.

The most logical as well as the most convenient point of
division between the material to be employed in this volume
and that intended to be incorporated in the next in order in
the series is at the termination of the government under the
Bellomont commission, and the beginning of that under the
last commission to Joseph Dudley.^

The Province Legislature.

At the time of the establishment of the province of New
Hampshire the conflict between the people of the Massachu-
setts Bay colony and the home government was well advanced,
involving the issue whether the existing charter government
should be retained, or something more in conformity with the

^Principal text of this volume, pofit, pp. 267-498.

■Principal text of this volume, postf pp. 499-709; Appendix J, post, pp. 856,
857.

52 NEW HAMPSHIRE PROVINCB LAWS.

present policy of the king substituted. The form of govern-
ment prescribed in 1679 for New Hampshire cannot, in the
light of the events of the succeeding ten years, be regarded as
fairly indicating, if, indeed, it even suggested what was to
be the nature or extent of the repressive measures in contem-
plation by the Stuarts in the event of a general change of the
forms and principles of colonial government in the other New
England plantations. In the government established by the
Cutt commission two legislative branches are recognized, the
members of one appointed by th^ crown, and the members
of the other elected by the people. This legislative body,
which from the beginning of the province is styled the gen-
eral assembly, was authorized to enact laws, the house of
deputies proceeding with the advice and consent of the presi-
dent and council. (Post^ p. 6.) The Cranfleld commission had
a similar provision, but in terms somewhat more explicit and
somewhat more in detail. It was stated in the legislative
article that the lieutenant-governor, with the advice and con-
sent of the council and assembly, should have power to make
laws, etc. {Post, p. 50.) One noteworthy difference between
the Outt commission and the Cranfleld commission, at the
point under consideration, is that, in the flrst, predom-
inance in the law-making body is apparently, if not intention-
ally, given to the deputies, while in the second, or Cranfleld
commission, the order is reversed, the council and deputies
being subordinated to the lieutenant-governor.

The popular branch of the assembly is not recognized by
the commissions for the Dominion of New England, 1686-1689.
That element in the legislative history of the colonies is the
subject of special comment in the notes, pp. 93, 100, 144, and
182 of this volume. The annual election of deputies in the
time of the Cutt government was provided for by Article 44
of the Cutt Code. {Post^ p. 37.) The annual meeting of the
general assembly was in like manner flxed for the flrst Tues-
day of March. The veto power and the right to dissolve the
general assembly were flrst committed to a New Hampshire
governor in speciflc terms by the Cranfleld commission. {Postj
p. 51.) The same powers reappear in the Allen commission
(post, p. 504) and in the Bellomont commission {post, p. 614).
In the earlier commissions there is some confusion in the em-
ployment of the term "general assembly," and some uncer-
tainty as to its application. This will be observed in a com-
parison of the use of the term in the Cutt commission, the
Cranfleld commission, and in the enacting clauses of the act
of 1692, which is chapter 1, p. 524, post, and the act which is
chapter 2, p. 526, post. Finally, however, it is evident that the
relations of the governor, council, and representatives, as parts
or branches of the legislative body, were made certain and

SOtTRCRS AND ANTBCBDEKTS. 53

became fixed in the time of Bellomont and Partridge/ The
first act of that administration {postj p. 653) contains the for-
mula, — "enacted by his Excellency the Governor, Council, and
Eepresentatives, convened in General Assembly." Some au-
thorities make a distinction between laws and acts, assigning
one of these terms to the original enactments of a colonial
legislature, and the other to those only which may have been
confirmed by the king in council. This distinction has not
been followed in this work, as the uncertainty which still
exists as to whether certain of the earlier acts were confirmed,
disallowed, or ignored renders the attempt to apply it in many
instances impracticable. The methods provided in determin-
ing the limits of time occupied by each consecutive general
assembly, and assigning to each its proper number in regular
chronological order, are explained in notes to the later text
of this volume. {Post, pp. 9, 523.)

The constituencies of the first province legislatures were, in
regard to the extent of the population, even after a lapse of
fifty-six years from the time of the first settlement, still of
very limited proportions. Article 9 of the Cutt Code {postj
p. 25) restricted the franchise in the election of deputies to
electors who were qualified in all the following particulars,
viz.: by being Englishmen and Protestants; by having taken
the oath of allegiance to His Majesty; by having been duly ad-
mitted to the liberty of being freemen of the province (the class
legally termed freemen in New Hampshire not being limited
by church membership); by being twenty-four years of age,
not vicious of life but honest and of good conversation; and
by possessing £24 of ratable estate. It is stated by Mr. Tut-
tle, Historical Papers, p. 186 (this volume, post, p. 776), that
the population of the province at this time was only about
4,000. (See also Dow's History of Hampton, p. 99.) Mr. Ban-
croft estimates the population of New Hampshire in 1688 as
6,000. 1 Histoij U. S., ed. 1883, p. 608. It is a valuable fea-
ture of the surviving records that presents the full text of the
order of the president and council of February 16, 1679-80,
designating the persons in each of the four towns authorizes
to vote for deputies to be members of the first general assem-
bly. This list appears in this volume, post, pp. 13, 14, 15.

The term "general court," which is now the official desig-
nation of the state legislature of New Hampshire, is a colonial
survival, derived, as is the same term employed in the Massa-
chusetts constitution, from the terminology of the first legis-
latures of the colonial period. The origin of that term must
be sought in the history of other English institutions as well

• ^"The Colonial Origins of New England Senates/' byF. L. Riley, is the
title of an instructive paper, appearing in Series 14, Johns Hopkins University
Studies in Historical and Political Science. Id. pamphlet edition, part devoted
specially to New Hampshire, pp. 40-63.

54 NBW HAMPSHIRE PROVINCE LAWS.

as colonial legislatures. The term "general assembly," as
descriptive of the legislative body in this province, is correctly
applied only in the period from 1679 to 1775. The general
assembly ended with the province government.

The Tables of Regnal Years and of Official Suc-
cession.

The tables which precede the principal text of the commis-
sions and statutes are included in the compilation, in order to
obviate, as far as practicable, the inconvenience of frequent
resort to works of reference by those who have occasion
to use a volume of this character for the identification
of the dates intended by the mention of regnal years against
the text of the English and colonial statutes. It is assumed,
also, that a like useful purpose would be subserved in placing
the tables of regnal succession, and the years covered by each
colonial administration, in equally accessible place and ar-
rangement for reference in the introductory divisions of the
volume.

The Continuation of the Series.

The material for a second volume of the laws of the prov-
ince, intended to be arranged and presented on a plan similar
to that adopted for this volume, has been collected, and con-
siderable progress already made in putting it in orderly form
for printing and publication.

The Commissions and Instructions Governing the Prov-
ince Administrations and Province Legislation.

Inasmuch as the commissions and instructions which were
from time to time issued for the direction of the governors of
the province are to be regarded, until revoked or modified, as
the organic law governing the exercise of all the powers of
executive, legislative, and judicial administra^tion, more
space than is usually assigned to that class of colonial docu-
ments, in the recent compilations of province laws by other
states, has been devoted to them in this work. The assem-
bling of these documents for each administration has been
as complete as possible in all cases wherein the student
might be expected otherwise to find difficulty in consulting
them. The exceptions include such documents as the first
and second colonial charters of Massachusetts, which can
readily be consulted in a number of works published by the
commonwealth of Massachusetts and the federal government,
and which have been widely circulated.

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